Report on the Select Committee on the Care & Upbringing of Children

PP 2014/0121

REPORT OF THE SELECT COMMITTEE ON THE CARE AND UPBRINGING OF CHILDREN (PETITION FOR REDRESS)

2014-15

REPORT OF THE SELECT COMMITTEE ON THE CARE AND UPBRINGING OF CHILDREN (PETITION FOR REDRESS)

On 10th December 2013 it was resolved –

That a committee of three Members be appointed with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to consider and to report to Tynwald by June 2014 on the Petition for Redress of Mr Philip James Walmsley presented at St John’s on 5th July 2013 seeking a review of the law relating to the care and upbringing of children, especially in cases of broken marriages and other relationships.

The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984.

Committee Membership

Mr J R Turner MLC (Chairman) Mrs K J Beecroft MHK (Douglas South) Hon P A Gawne MHK (Rushen)

Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas IM1 3PW (Tel 01624 685520, Fax 01624 685522) or may be consulted at www.tynwald.org.im

All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas IM1 3PW.

In Tynwald

STH July 2013

To the Honourable members of Tynwald Court

The Humble Petition of:

Mr Philip James Walmsley 18 Ballachrink, Colby, IM9 4PB

Shewith that:

Since 2010 I have been trying to gain reasonable, regular contact with my son now 4 years old, of whom I have parental responsibility for. I am currently only seeing him for 3 hours contact on a Saturday.

In October 2011 I contacted an advocate regarding contact suddenly stopping, after a wait of two months nothing happened so I changed advocates in December 2011. It took from December 2011 to November 2012 to get the case back into court. This led to my not seeing my son in excess of a year, through no fault of my own.

Contact sessions finally started in January 2013 via the childrens centre located in Derby Square Douglas supervised at his mother's request. I had previously had a period of supervised contact sessions in 2010, once again at his mother's request. Both times I have been proven by the court welfare officer to be a caring, responsible parent and of no risk to my son.

The contact sessions of 2013 started to go downhill rapidly, my son came out with some very disturbing comments, leading me to believe his mother was alienating him from me. At this point I chose to put in an application for residence of my son. Dr Cheryl Smith a child psychologist was ordered to carry out a report. in May 2013, on being away from the confines of the contact centre and with the psychologists involvement, contact sessions started to improve, my son stopped coming out with the comments he was making and started to interact more with me. The child psychologist's report concluded that there should be no reason why with promotion from both me and my son's mother contact could not go extremely well. My son had two hours and forty minutes with myself and my family one Saturday, under the watchful eye of Dr Smith, and asked to stay longer.

At the last court hearing, I asked for a shared residence order to be considered, the Deemster overseeing the case, stated that it would be very unlikely I gain shared residence of my son, and ordered two three-hour unsupervised contacts, and four four-hour unsupervised contacts every Saturday for 6 weeks. He also stated that it may be possible to have one overnight stay in the future. I live with my partner and our 4 children. My oldest son, aged 11, has lived with me at least three days a week the majority of his life. I have always had regular contact and recently he has chosen to move in with myself and partner permanently. My partner's two boys, aged 5 and 2, I have taken on as my own and my 7 month old daughter I see and care for on a daily basis. As a father around children every day of my life, to be told I can only see my son for a few hours on a Saturday, is appalling. I am not being allowed to give my son an upbringing, and he is being denied a proper father/son relationship with me, and the stability of having two parents caring for him, albeit separately.

Wherefore your petitioner seeks that

With regards to child residence and contact cases, that both parents have equal rights and responsibilities over their child, where there is no history of domestic abuse, neglect or violence from either parent.

Parents must attend a minimum of 3 compulsory mediation sessions before even entering a court room, in an attempt to resolve any underlying problems or issues, the cost of which should be shared by both parents. Should mediation sessions fail both parents should attend court hearings without an advocate. No parent should be disadvantaged in that one has legal representation and the other does not. The overall outcome should be based on the child not the parents and who has the best legal representative.

If both parents can provide a stable family home for the child, shared residence orders should be issued (Shared residence not necessarily meaning time split 50 50, but the same amount of input and promotion in the child's life of both parents and equal rights and responsibility of the child for both parents)

Neither parent should be disadvantaged in a court room, both parents should be entitled to equal time and access to their children, whether the relationship between the parents be acrimonious or not.

The Children's contact centre should only be used where there is proven danger to a child, or to establish contact for older children. The contact centre should have massive input in court proceedings and should be able to make decisions themselves without the courts' being involved. They see the day to day aspects of child contact/residence cases.

Table of Contents

I. THE COMMITTEE AND THE INVESTIGATION ...... 1

II. THE PETITIONER’S EXPERIENCE OF THE LEGAL SYSTEM...... 1

III. SUBSTANTIVE LAW: CHILDREN’S RIGHTS AND PARENTAL RESPONSIBILITIES... 2

IV. MEDIATION AS A PRECONDITION FOR ACCESS TO THE COURT AND TO LEGAL AID ...... 5

V. LEVELLING DOWN...... 8

VI. THE CHILDREN’S CENTRE...... 10

CIRCUMSTANCES IN WHICH THE CHILDREN’S CENTRE IS USED 10

CHILDREN’S CENTRE INPUT INTO COURT PROCEEDINGS 11

VII. AN ALTERNATIVE DELIVERY MODEL FOR MEDIATION...... 12

VIII. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATIONS ...... 14

ORAL EVIDENCE ...... 17

7TH MARCH 2014 EVIDENCE OF MRS PAT INGRAM, FAMILY COURT WELFARE SERVICE, AND MISS DEBORAH BRAYSHAW, DEPARTMENT OF SOCIAL CARE 19

31ST MARCH 2014 EVIDENCE OF MRS TINA HALL, MEDIATOR 47

7TH MAY 2014 EVIDENCE OF MR JOHN KNIGHT AND MRS JO THOMAS, ISLE OF MAN CHILDREN’S CENTRE 69

7TH MAY 2014 EVIDENCE OF MRS JUDY ARNOLD, CRUSE BEREAVEMENT CARE 87

28TH MAY 2014 EVIDENCE OF MR KEVIN O’RIORDAN AND MRS HAZEL SMITH, ADVOCATES 101

13TH JUNE 2014 EVIDENCE OF MR FRANK HANNA, MEDIATOR 127

WRITTEN EVIDENCE ...... 149

APPENDIX 1 CHILDREN & YOUNG PERSONS ACT 2001, SECTIONS 1 TO 3 151

APPENDIX 2 SUBMISSION DATED 16TH JANUARY 2014 FROM HM ACTING ATTORNEY GENERAL 157

APPENDIX 3 SUBMISSION DATED 3RD MARCH 2014 FROM THE LEGAL AID COMMITTEE 167

APPENDIX 4 SUBMISSION DATED 25TH JANUARY 2014 FROM THE GENERAL REGISTRY INCORPORATING A NOTE FROM HM SECOND DEEMSTER 171 APPENDIX 5 UPDATE PROVIDED ON 3RD MARCH 2014 BY THE GENERAL REGISTRY ON THE IMPLEMENTATION OF THE RECOMMENDATIONS OF THE SELECT COMMITTEE ON LEGAL AID IN FAMILY MATTERS 187

APPENDIX 6 SUBMISSION DATED 24TH DECEMBER 2013 FROM THE FAMILY COURT WELFARE SERVICE 191

APPENDIX 7 SUBMISSION DATED 20TH JANUARY 2014 FROM THE DEPARTMENT OF SOCIAL CARE 197

APPENDIX 8 SUBMISSION DATED 1ST APRIL 2014 FROM HON EDDIE TEARE MHK, TREASURY MINISTER 201

APPENDIX 9 SUBMISSION DATED 8TH APRIL 2014 FROM MR KEVIN O’RIORDAN, ADVOCATE 207

APPENDIX 10 SUBMISSION DATED 22ND MAY 2014 FROM MRS HAZEL SMITH, ADVOCATE 213

APPENDIX 11 SUBMISSION DATED 17TH JANUARY 2014 FROM THE CHILDREN’S CENTRE 221

APPENDIX 12 SUBMISSION DATED 15TH MAY 2014 FROM JUDY ARNOLD, CRUSE BEREAVEMENT CARE 225

APPENDIX 13 SUBMISSION DATED 27TH AUGUST 2014 FROM MALCOLM DEAR 231

APPENDIX 14 SUBMISSION DATED 18TH MARCH 2014 FROM STEPHEN HOLMES 235

APPENDIX 15 SUBMISSION DATED 21ST JANUARY 2014 FROM ANNE KELLY 241

APPENDIX 16 SUBMISSION DATED 20TH JANUARY 2014 FROM MICHELE WIRTZ 245

APPENDIX 17 SUBMISSION DATED 30TH JANUARY 2014 FROM A MEMBER OF THE PUBLIC 249

APPENDIX 18 SUBMISSION DATED 11TH JUNE 2014 FROM MR FRANK HANNA 253

APPENDIX 19 MEDIATION AGENCY PAPER DATED JUNE 2008 271

To: The Hon Clare M Christian, President of Tynwald, and the Hon Council and Keys in Tynwald assembled

REPORT OF THE SELECT COMMITTEE ON THE CARE AND UPBRINGING OF CHILDREN (PETITION FOR REDRESS)

I. THE COMMITTEE AND THE INVESTIGATION

1. This Committee was established by the following resolution of Tynwald on 10th December 2013 –

2. We have met on eight occasions and taken oral evidence on six of these. Because of the subject matter of the petition, we heard Mr Walmsley’s oral evidence in private and we have decided not to publish it. The other oral evidence is reproduced within this Report.

3. We invited written submissions from the public and from HM Acting Attorney General, the Legal Aid Committee, the General Registry, the Family Court Welfare Service, the Department of Social Care and the Law Society. The written evidence we received is reproduced within this Report.

II. THE PETITIONER’S EXPERIENCE OF THE LEGAL SYSTEM

4. According to his own account as set out in his petition, Mr Walmsley, having separated from the mother of his youngest son, was prevented from seeing that son

for more than a year through no fault of his own. The child in question was under three years old at the time. Contact was eventually agreed to. At the time of the petition this only amounted to a few hours a week – despite the fact that Mr Walmsley was then living with his partner and four other children. Mr Walmsley wrote:

As a father around children every day of my life, to be told I can only see my son for a few hours on a Saturday is appalling.

5. It is the the nature of the Select Committee process that, although the Committee was established in response to an individual case, it is not appropriate for us to examine that case in detail nor to attempt to adjudicate on the merits of that case. We are conscious that while we have heard from Mr Walmsley himself, we have not heard from any other party with whom he has been in dispute.

6. The same can be said of the other members of the public who have written to us.1 They are inevitably people who are aggrieved in some way. Their grievances may well derive from the unique circumstances of their individual case, rather than from any systematic failing.

7. Nevertheless we are prepared to comment on the basis of the evidence before us that the courts do not always seem to have done what we would have expected. We consider that it can only be in exceptional circumstances that the best interests of a child do not include access to both parents.

We conclude that any system which could allow a child to be denied access to either parent for so many months is in urgent need of review.

III. SUBSTANTIVE LAW: CHILDREN’S RIGHTS AND PARENTAL RESPONSIBILITIES

8. Much of the prayer of the petition is concerned with equality between parents. The petitioner asks us to examine ways of introducing law to ensure that:

[A] With regards to child residence and contact cases, that both parents have equal rights and responsibilities over their child, where there is no history of domestic abuse, neglect or violence from either parent…

[D] If both parents can provide a stable family home for their child, shared residence orders should be issued (shared residence not necessarily meaning time split 50 50, but the same amount of input and promotion in the child’s life of both parents and equal rights and responsibility of the child for both parents).

1 Appendices 13 to 17 2

[E] Major decisions regarding schooling etc, should be agreed by both parents. If parents can’t come to agreements over major decisions, a Deemster will take both parents’ wishes into account, and make a decision in the best interests of the child.

[F] Neither parent should be disadvantaged in a court room, both parents should be entitled to equal time and access to their children, whether the relationship between the parents is acrimonious or not.

9. The law as it stands does not promote equality between parents but rather the welfare of the child. The approach of the courts is laid down in the Children and Young Persons Act 2001, which provides that:

(1) When a court determines any question with respect to —

(a) the upbringing of a child, or

(b) the administration of a child’s property or the application of any income arising from it,

the welfare of that child shall be the court’s paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3) Subject to subsections (1) and (2), a court in any proceedings referred to in subsection (2) shall seek, so far as practicable, to promote the upbringing of children by their families; and for this purpose “family”, in relation to a child, includes any individual who has parental responsibility for him and any person with whom he has been living.2

10. The Act gives parents not rights but responsibilities. HM Acting Attorney General commented in evidence to us that:

The concept of parental responsibility, introduced in 2001 by the Act, was a deliberate shift away from the previous position that parents had “rights” when it came to their children, and replaced the previous position with a new concept (now the established law) that it is for parents to have responsibilities towards (as opposed to rights over) their children and that the exercise of those

2 Appendix 1 3

responsibilities is to be considered in the context of the benefit of the child, not the parent. 3

11. As far as residence and “major decisions” are concerned, HM Acting Attorney General wrote:

The Court approaches such matters from the starting point that the only “rights” which it needs to give consideration to are the rights of the child. In this regard it will ordinarily consider that a child has a right to have contact with both of his or her parents and this right will be promoted and supported by the Court unless there is a good reason to depart from this approach. The parents do not themselves have rights to or over a child, but they do have decision-making powers and certain responsibilities attaching to their exercise of those powers. Where there is a disagreement in respect of how those responsibilities should be exercised between parents, then the Courts often have to resolve that dispute. The Court’s aim in resolving these disputes is however not to satisfy the parties (the mother/father/grandparents), but to decide upon a course of action which is most appropriate for the child’s welfare. Many parties in family litigation fail to identify that the child’s interests may be different from his or her parents’ interests.4

We conclude that there is no need to amend the current statutory provisions under which the welfare of the child is paramount and the parents have responsibilities as opposed to rights.

12. If the statutory principle is correct, why do things go wrong? From the evidence we have heard and from our own experience we consider that there are a number of reasons for this. One is that parents can become so caught up in their dispute with one another that they may fail to appreciate the impact on the children who are caught in the crossfire. It is in circumstances like these that parents may start to assert rights over children, as opposed to accepting responsibilities towards them, which in our view always includes a responsibility to co-operate with the other parent. Another issue is that the adversarial court process is a blunt instrument, ill suited to the complex and ever changing task of bringing up children. If parents cannot resolve matters by talking to one another, the court will always be a poor substitute.

We conclude that every effort must be made to help parents resolve disputes without recourse to the adversarial court process. This applies to disputes which are directly concerned with the upbringing of children (such as

3 Appendix 2, paragraph 7 4 Appendix 2, paragraph 10 4

residence) and also to other disputes, any of which can indirectly affect children through their effect on the parents’ relationship (such as property disputes).

IV. MEDIATION AS A PRECONDITION FOR ACCESS TO THE COURT AND TO LEGAL AID

13. The petitioner recognises the merit of resolving matters outside court. To that end he proposes, in the prayer of his petition:

[B] Parents must attend a minimum of 3 compulsory mediation sessions before even entering a court room, in an attempt to resolve any underlying problems or issues, the cost of which should be shared by both parents.

14. The idea of mediation as a precondition for legal aid was considered by the Select Committee on Legal Aid in Family Matters which reported twice in 2010. Following a recommendation of that Committee, it was resolved on 13th July 2010:

That arrangements should be put in place to withhold legal aid funding from parties who unreasonably fail to attend mediation and who fail to participate constructively in it.

15. The General Registry told us in its written evidence:

The Legal Aid Office has always sought to ensure that parties involved in a dispute attempt to settle the matter by way of negotiation. This may include the use of mediation. Should the dispute fail to be resolved by way of negotiation, the assisted party is required to provide evidence as to why it was unsuccessful. If the assisted party fails to provide evidence in this regard or it transpires that the failure was the fault of the assisted person, then the legal aid certificate will not be extended to include further work. Draft regulations in relation to the availability of legal aid for mediation are currently out for public consultation.5

16. As to making mediation a precondition for access to the court itself, we have heard a variety of views. His Honour the Second Deemster wrote that this:

may be a desirable process to introduce, save in cases where mediation is unsuitable (a record of domestic violence for example) or where urgent steps are required to safeguard a child’s welfare by court order.6

5 Appendix 5, Recommendation 4 6 Appendix 4 5

17. HM Acting Attorney General, on the other hand, wrote:

it is hard to understand how enforced mediation might assist in these circumstances given that one of the fundamental principles of mediation is that both parties must be willing to agree to mediation…7

18. Mrs Pat Ingram of the Family Court Welfare Service wrote:

There is already an expectation that the parents will have tried or at least seriously considered mediation prior to an application being placed before the Courts.8

19. Mrs Tina Hall, a mediator currently practising in the Isle of Man, described the existing situation as follows:

I think the courts already very strongly encourage people to attend mediation, both when they are considering putting an application into court, because all the paperwork says, ‘Have you tried?’ ‘Will you go?’ ‘If you haven’t, why not?’ So there is an encouragement there.

There is a great number of the advocates involved in family law who are encouraging about mediation and encourage clients to try it, because it is a kinder way for them and their children to reach some form of settlement. Perhaps the only place that there might be compulsion would be to attend an intake session, to find out more about mediation.

I know in England that is the path that they have taken: you are not compelled to attend at mediation, but you are compelled to find out about it and see whether it is appropriate for you and your circumstances.9

20. After we had heard about the existing system from Tina Hall, we were approached by Mr Roger Tomlinson of the Positive Action Group who recommended that we hear from Mr Frank Hanna, a specialist in mediation with experience in the UK and the USA. Mr Hanna addressed the question of compulsory mediation in a paper he produced in 2008 as follows:

For mediation to be successful, parties must agree to come to the table in “good faith.” This means everyone must come with a mind to find a resolution. As mediators, we accept that this process may take a while to uncover all the individual interests of parties, but everyone must have a good attitude about

7 Appendix 2, paragraph 12 8 Appendix 6 9 Q 72 6

the overall success of the process. Forcing people into mediation is therefore a bit risky.

With that said, mediation is mandated by most courts in the USA as compulsory. A complainant’s lawyer is only given court time once his or her client has tried mediation and has failed to reach a resolution. Typically the cases that were remanded to mediation were within the Civil Courts (Small Claims) and within the various local community programmes. The system works well as most mandated mediations do result in a good resolution. By employing experienced, well trained mediators most people become engaged in the process and set about finding resolutions to their core issues. Remember people generally have good common sense; but whilst engaged in the passion of conflict, logic is often abandoned in favour of victory or punishing the other party.10

21. In his oral evidence to us Mr Hanna explained further:

Let us say, for the sake of argument, that in my vision people would apply to court, and court would say, ‘Have you been to mediation?’ ‘No.’ Then refer to the mediation centre… That is the way it happens in America: ‘Has this case been to mediation?’ Down the corridor… And you would have your volunteer mediators.

Part of… it is what the mediators here call ‘an intake meeting’ – I think that is a bit grandiose – mediators will sit down with people and explain to them exactly what mediation is, and thereupon they enter into a mediation agreement. The agreement is a legally binding agreement which says, ‘We will take part; it is confidential; we are here in good faith; and we make various promises about violence and…’ standard agreements.

Then a mediation takes place, and that mediation will either lead to one of three things: it will lead to a failure to agree; it will lead to an agreement in which it is recorded as a legally binding contract; or it will lead to a report from the mediator which says, ‘I spent two and a half or three hours, I found Party A very workable, very keen to resolve the issue. I found Party B obstructive, destructive, and I am satisfied he did not come in good faith.’ And that goes back to the judge.

10 Appendix 19, page 6 7

Then the judge comes to a decision; he knows a whole lot more about that case now than he did before he started.11

We conclude that while “compulsion” may be the wrong word to use in this context, the courts should require that litigants must be prepared to attempt mediation in good faith. Coming to mediation in good faith should be a precondition not only for legal aid but also for access to the court itself.

Recommendation 1

That Tynwald is of the opinion that the rules of court and the legal aid rules should incorporate a requirement that mediation must be attempted as a matter of course as a precondition for access to the court and to legal aid; and that both sets of rules should set out clearly the adverse consequences of any failure to come to mediation in good faith.

V. LEVELLING DOWN

22. Legal aid is granted on the basis of a means test and a merits test. There are some family cases in which one party is entitled to legal aid and the other is not, and this can seem unfair. The petitioner, in the prayer of his petition, proposes a radical solution:

[C] Should mediation sessions fail both parents should attend court hearings without an advocate. No parent should be disadvantaged in that one has legal representation and the other does not. The overall outcome should be based on the child not the parents and who has the best legal representative.

23. HM Acting Attorney General wrote:

I suggest, this could be considered inappropriate and not in the interests of justice. Parties to litigation may choose not to have legal representation, but to actually legislate so as not to allow a party to litigation to have legal representation would be unlikely to be compliant with the Human Rights Act 2001.12

24. Mr Kevin O’Riordan, a practising Manx advocate, wrote:

11 QQ 234–235 12 Appendix 2, paragraph 13 8

an advocate on one or both sides can help make the experience easier for both parties and for the Court, not least by taking some of the heat out of what might otherwise be said in Court. Most family advocates will adopt a conciliatory approach and may well help achieve a negotiated settlement of a dispute even where the opposing party is unrepresented.

9. In many broken relationships, one party has had a controlling influence or attitude towards the other party, even if this has fallen short of being threatening. That other party is likely to need the help of an advocate or of some other representative at Court to help redress the balance of power. I therefore disagree with Mr Walmsley’s apparent suggestion that parents in a Courtroom are necessarily rendered more equal by the removal of advocates from the process.13

25. His Honour the Second Deemster wrote:

The attendance of all parties without legal representation will lead to further delays to an already slow process. Advocates invariably speed up the court process as they know the law (which is often complex) and they are trained and able to separate the relevant from the irrelevant and to prevent emotions from obscuring what is best for the children. The Second Deemster supports more and better trained legal representation, rather than a curtailment of the right to legal representation. In the event that one party is not represented and the other is, all judges are well used to ensuring that the unrepresented party is not disadvantaged. In short, unrepresented parties can lead to delay, which is itself harmful to children. To avoid such delays, the only viable alternative would be to increase the size of the judiciary.14

26. While we acknowledge the objections of the legal profession we are not convinced that in private law childcare proceedings, both parties always need independent legal representation. Parents do not need lawyers to advise them on the pros and cons of different proposed arrangements for the care of a child. As Mr O’Riordan himself put it:

Arrangements for the care of a child are essentially a matter of practical reality, albeit guided by the law.15

Despite the good intentions asserted by Mr O’Riordan, our view is that the involvement of lawyers can exacerbate a difficult situation and can make it harder to

13 Appendix 9, paragraphs 8 to 9 14 Appendix 4 15 Appendix 9, paragraph 4 9

separate practical but urgent childcare issues from matters such as property disputes which are much less time-critical.

27. Where parents in family disputes do need legal advice is to assist them in understanding court procedures. We discussed at some length with Mr O’Riordan and Mrs Smith how this might be arranged.16 We consider that if one party is assisted by legal aid, then the legally aid funded lawyer should, in the public interest, be obliged to advise both parties on procedural matters; or alternatively that a publicly funded lawyer should be provided as part of the courts administration to help all parties to understand the system. We believe that if both parties are advised on procedure by the same person, this should reduce the scope for dispute on procedural matters.

Recommendation 2

That arrangements should be developed to provide assistance on procedural matters to both parties in private law family disputes, both parties to be advised by the same person; and that these arrangements should be subject to a 12-month trial period in the first instance.

VI. THE CHILDREN’S CENTRE

28. The petitioner wrote in the prayer of the petition:

[G] The Children’s contact centre should only be used where there is proven danger to a child, or to establish contact for older children. The contact centre should have massive input in court proceedings and should be able to make decisions themselves without the courts’ being involved. They see the day to day aspects of child contact/residence cases.

Circumstances in which the Children’s Centre is used 29. The Children’s Centre explained to us in its written evidence that it operates two distinct services, albeit using the same premises and the same staff:

 supervised contact, which takes place on Monday to Friday and is funded through a contract with the (then) Department of Social Care; and

 supported contact, which takes place on Saturday and is funded by charitable donations. 17

30. In oral evidence the Family Court Welfare Service and the Children’s Centre itself explained these two services and the circumstances in which they are used.18

16 QQ 167 to 174 17 Appendix 11 10

We conclude that the circumstances in which the Children’s Centre is used are appropriate.

Children’s Centre input into court proceedings 31. Mrs Ingram explained to us that in family proceedings, where the court required a report on a particular child or family, that report would normally be compiled by the Family Court Welfare Service.19

32. The Children’s Centre in its written evidence wrote:

The Children’s Centre believes that every effort should be made to resolve issues without the involvement of the Family Courts. The delegation of such authority could also resolve contact arrangements for siblings, grandparents and extended family members.20

33. In oral evidence Mrs Thomas explained further:

At the moment, I think that the authority rests within the courts, and quite rightly so, but inevitably that is a lengthy period of time in the child’s life where a very important matter for that child remains unresolved. They may not know when they are next going to see a parent or other extended members of the family, so everything we could possibly do to make that a shorter period of time we think is in the interest of the child.

The delegated authority could be vested in the manager or managers of the Contact Centre, and by that their views and reports would be given a value by the courts. So families would know that the status of a court report produced by a Family Court welfare officer later in the proceedings, as it stands at the moment, could be brought forward to an earlier point of intervention. So that delegated authority rests with somebody who is trying to resolve the issues and then present their findings in an open and transparent way, so that all people involved would know what her evidence was based on. That would be something that we are very familiar with doing in the supervised Contact Centre.

If we were, and we frequently are, in care proceedings with the family courts, and the supervised Contact Centre are asked to give evidence, then we produce reports – evidence based on the relationships and the parenting skills we have observed. The skills are there to draw upon that at an earlier stage when it is a

18 QQ 33 to 35; Q 118 19 QQ 4 to 6 20 Appendix 11 11

family that has no involvement with the Department of Social Care but is looking for support to resolve the issues that a divorce has led to. 21

34. She and Mr Knight confirmed that the Children’s Centre wished to be able to report directly to the family court, rather than have to wait for the court to send a Family Court Welfare Officer. The Children’s Centre believes that this innovation could help to reduce delays.22

Recommendation 3

That the offer by the Children’s Centre to report directly to the court in private law family disputes, as a means of relieving pressure on the Family Court Welfare Service and reducing delay, should be taken up.

VII. AN ALTERNATIVE DELIVERY MODEL FOR MEDIATION

35. Everyone we heard from in this investigation agreed on the importance of mediation. It is clearly better for any dispute to be settled out of court. One way of doing this is through mediation.

36. From 2008 to 2010 the Children’s Centre provided a family mediation service costing around £90,000 per year. It was discontinued in 2010 because of a lack of funding.23 Following a recommendation of the Select Committee on Legal Aid in Family Matters, Tynwald resolved in July 2010:

That the Treasury give careful consideration to the potential merits of funding a permanent third party mediation service, including through the commitment of continuing grant in aid at a realistic level, and report to Tynwald.

The Treasury has considered the matter but has not made any funds available.24

37. Mediation services are provided by members of a network, accessible via a website.25 A member of that network, Tina Hall, described to us in her oral evidence how the system works today.26 It is essentially a privatised system with a small number of part-time practitioners funded by fees.

38. The existing delivery model appears to be working to a certain extent. Neither the petitioner nor any other witness told us there was a significant problem with

21 Q 131 22 QQ 148 to 152 23 Report of the Select Committee on Legal Aid in Family Matters (Petition for Redress) [PP 74/10], paragraphs 4.40 to 4.48 24 Appendix 8 25 See Appendix 4 and also the Tynwald oral question attached to Appendix 8 26 QQ 65 to 70 12

availability of mediation services. However, the privatised model does have certain disadvantages:

 there is no “mediation centre” in the sense of a physical location where people can go to find out about mediation at an early stage in their dispute. Most referrals to mediation come through advocates, meaning that parties do not find out about mediation until after they have at least contemplated going to law;

 the fees can be a disincentive to privately funded parties;

 the costs of qualification and accreditation can be a disincentive to people who could be successful volunteer mediators.

39. Mr Hanna told us he had visited the Isle of Man in 2007 and had, at that time, made proposals for developing mediation services here. He had had some discussions with the authorities but these discussions had stalled for reasons which remain unclear.27

40. Mr Hanna explained his ideas to us in his oral evidence and in a paper dated June 2008 which he subsequently submitted.28 Some of the elements of his proposal are:

 a mediation centre with a physical location

 people could come into the centre “off the street”, or disputes could be referred to the centre by the courts

 mediation would not be limited to family matters but could also assist other disputes including industrial and commercial matters

 the centre would be independent of Government and of the legal profession

 at the centre, mediators could be trained and a standard could be set and maintained. Eventually it would develop into an Academy which would form a reputation where people would come to the Isle of Man to learn

 many of the mediators would be volunteers

 Government would be called on to provide approval, support, publicity and encouragement but not money

41. A full investigation of Mr Hanna’s proposal would go beyond the remit of the current investigation. However, we have heard enough to be persuaded that his ideas deserve further attention.

27 Q 200 28 Appendix 19 13

Recommendation 4

That the Social Affairs Committee of the Council of Ministers should investigate Mr Hanna’s proposal for a mediation centre and report to Tynwald by April 2015.

VIII. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATIONS

42. The conclusions and recommendations of this Report are reproduced here for ease of reference.

43. We conclude that any system which could allow a child to be denied access to either parent for so many months is in urgent need of review. (paragraph 7)

44. We conclude that there is no need to amend the current statutory provisions under which the welfare of the child is paramount and the parents have responsibilities as opposed to rights. (paragraph 11)

45. We conclude that every effort must be made to help parents resolve disputes without recourse to the adversarial court process. This applies to disputes which are directly concerned with the upbringing of children (such as residence) and also to other disputes, any of which can indirectly affect children through their effect on the parents’ relationship (such as property disputes). (paragraph 12)

46. We conclude that while “compulsion” may be the wrong word to use in this context, the courts should require that litigants must be prepared to attempt mediation in good faith. Coming to mediation in good faith should be a precondition not only for legal aid but also for access to the court itself. (paragraph 21)

Recommendation 1

Recommendation 2

47. We conclude that the circumstances in which the Children’s Centre is used are appropriate. (paragraph 30)

14 Recommendation 3

Recommendation 4

That the Social Affairs Committee of the Council of Ministers should investigate Mr Hanna’s proposal for a mediation centre and report to Tynwald by April 2015. (paragraph 41)

J R Turner

K J Beecroft

P A Gawne

September 2014

ORAL EVIDENCE

7th March 2014 Evidence of Mrs Pat Ingram, Family Court Welfare Service, and Miss Deborah Brayshaw, Department of Social Care

T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

S E L E C T C O M M I T T E E O N T H E C A R E A N D U P B R I N G I N G O F C H I L D R E N ( P E T I T I O N F O R R E D R E S S )

HANSARD

Douglas, Friday, 7th March 2014

PP2014/0053 CUC, No. 1

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2014

21 SELECT COMMITTEE, FRIDAY, 7th MARCH 2014

Members Present:

Chairman: Mr J R Turner MLC Mrs K J Beecroft MHK Hon. P A Gawne MHK

Clerk: Mr J D C King

Contents Procedural ...... 3 EVIDENCE OF Miss Deborah Brayshaw, Head of Safeguarding, Department of Social Care and Mrs Pat Ingram, Director of Community Operations for the Prison and Probation Service ...... 3 The Committee sat in private at 11.59 a.m...... 25

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Select Committee of Tynwald on the Care and Upbringing of Children (Petition for Redress)

The Committee sat in public at 10.30 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR TURNER in the Chair]

Procedural

The Chairman (Mr Turner): Good morning, welcome to this public meeting of the Select Committee on the Care and Upbringing of Children. I am Juan Turner MLC, and I chair this Committee. With me are the Hon. Phil Gawne MHK for Rushen, and Mrs Kate Beecroft MHK for Douglas South, and also with us is our Committee Clerk 5 Jonathan King. If we could first of all ensure that mobile phones are switched off as it interferes with the recording equipment. And also for the purposes of Hansard I would kindly ask that we do not have two people speaking at once. The Committee was established by Tynwald on 10th December 2013. It was resolved that a 10 committee of three members be appointed with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876 as amended, to consider and report to Tynwald by June 2014 on the petition for redress of Mr Philip James Walmsley presented at St John’s on 5th July 2013, seeking a review of the law relating to the care and upbringing of children especially in cases of broken marriages and other relationships. 15 In accordance with Standing Order 5.10(4) we have heard evidence from Mr Walmsley, but given the subject matter of his petition we heard that evidence in private. The full text of Mr Walmsley’s petition is on the Committee’s website and has been sent to our two witnesses today. They have also sent us written submissions for which we are grateful.

EVIDENCE OF Miss Deborah Brayshaw, Head of Safeguarding, Department of Social Care and Mrs Pat Ingram, Director of Community Operations for the Prison and Probation Service

20 Q1. The Chairman: So to commence we would like to, if we could, start by stating your name and job title. We will start first of all with Mrs Ingram.

Mrs Ingram: Patricia Ingram, I am Director of Community Operations for the Prison and 25 Probation Service.

Miss Brayshaw: I am Debbie Brayshaw, I am Head of Safeguarding in the Department of Children and Family Service.

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30 Q2. The Chairman: First of all, we have a series of questions that have arisen out of your submissions, which you have kindly sent to the Committee. We will start off first, if each of you could explain in turn what your actual job entails and how that fits into the Family Court process. So, it is: what is the role you and your staff would have in cases such as the one outlined by 35 the petitioner, Mr Walmsley? Maybe we could start with Mrs Ingram.

Mrs Ingram: I am Head of the Probation Service, the section of the Prison and Probation Service, and under that umbrella we have the Family Court. There are two court welfare officers 40 who provide reports for the Family Court, and I manage them directly.

The Chairman: Okay.

Miss Brayshaw: As Head of Safeguarding, our involvement in such cases as have brought the 45 petition today would be where there are emerging concerns around the protection of children, or safeguarding concerns for those children. So in the main we would not be involved in the majority of private law cases, it would only be a small number that would come to our attention.

50 Q3. The Chairman: So the bulk of these would be would be general cases where it is not thought that the youngsters would be at risk?

Miss Brayshaw: Absolutely, yes.

55 Q4. The Chairman: I am also going to invite my fellow Committee members that at any point during the proceedings if you wish to ask questions please just indicate. Obviously you have both been given the opportunity to read Mr Walmsley’s petition, so would either of you, or both of you, like to make an opening statement with regard to the content of that petition and the request made in it? 60 Mrs Ingram: The Mr Walmsley case has been open to the Family Court Welfare Service for some time and I understand is still open to us. It is to us a fairly straightforward case: he made an application to the court, the court then instruct us to write a report, and in that respect our report is providing information to enable the court to make the decision. 65 We gather information, the main part of which is the wishes and feelings of the child, if the child is old enough and of sufficient understanding that they can voice those wishes and feelings – and any other information that the Court Welfare Officer deems relevant to the court. We then supply that to the court in a report, and we make a recommendation. The court then reads our report, takes account of the recommendation, also has information from each 70 party via statements etc, and then it is the court that makes the final decision on whether an order will be put in place for those children.

Q5. The Chairman: So how would you gather that information? What is the environment, the process of… Obviously you have got a job of dealing with 75 children: children can be quite shy, some are more confident than others. So what is the process of actually gathering that information?

Mrs Ingram: We ask each party to sign an agreement that we can gather information about them. So once we have that information and that authority from the parent we access school 80 information if the child is of school age; nursery information; information from the health visitor; in some circumstances where the child may have medical issues, we might ask specifically for

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information from a GP; we undertake police checks on the parents and any other significant adults who might have significant care of the child. We also request information from the Department of Social Care and they will tell us 85 whether there has been any previous involvement with the family. If there is, then we go and access that information, we will read the Department of Social Care file. Then the interview with the child, again it has to relate to the individual child: some children are too young and we may just go and observe them with the parent. We will observe them with both parents and we will go into the home, so if the child spends time with both parents in each 90 home we will visit each home, see how comfortable the child is with the parent. It is obviously only a brief view of parenting: we can only comment on what we see at the time we were there, and a visit would not be any longer than one and a half hours, two hours at most, so we comment on what we observe. If a child is old enough and can understand what is being asked of them and can give a view, 95 then we will interview the child. If they are old enough they will be interviewed separately from the parents, if they are happy with that. You cannot go on age: some children are more confident than others, and so you might have quite a young child, of five or six, quite confident to speak to you and have very clear views on what they would want. Then you can have an older child, of 12 or 13, who you might expect to be able to do that but are not able to. We have to 100 take into account any child with learning difficulty, etc.

Q6. The Chairman: Sorry, can I just ask… Obviously, somebody coming to the house – I know from my own experience when we get visitors to the house my child says, ‘Who was that?’ 105 How is the whole idea of somebody coming into the house sold to the child: what this adult is doing there?

Mrs Ingram: The parents will have been interviewed first, because they get an invite to come into the office and they undertake a formal interview, where the Court Welfare Officer gathers 110 information and hears what is essentially their side of the story. It is then explained to them that we will want to come on a home visit and we will want to speak to your children. We ask them how they think the child will understand this. Often, even before we are involved, these children are fully aware of what is going on because the parents will have already discussed it with them. We do not always agree with that 115 – we think children should not be involved in adult decision-making – but it is often already in place so the child may already have a good idea. If they have not, we say to the parent, ‘Just explain that this is somebody who is going to come and talk to you, so they can tell the Deemster how you feel about it’. Obviously only if they are old enough to understand that. 120 If they are very tiny then it is a very odd situation because yes, this person who they have never seen before does arrive and sits in their house, chats to their parent and watches them playing etc. So it is not natural, we accept that. And of course people can present for the time that you are in the home in a different way to how it might be normally – but that is acknowledged that it is not a natural situation. 125 The Chairman: Yes. Mr Gawne?

Q7. Mr Gawne: Presumably there is a vast amount of academic research into how you review these sorts of situations, (Mrs Ingram: Yes.) and if it is anything like the scientific fields that I 130 trained in many years ago there will be various views on various sides. So presumably you are in quite a difficult position in that you have got to decide which of the various bits of guidance that are available you would follow in terms of trying to determine what the child actually wants?

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Mrs Ingram: Absolutely. And we do have different ways of doing it: we use play, we have 135 little Lego figures, we have little dolls with facial expressions – and so there are lots of ways of doing it, that the child may not realise that is what they are being asked. And we will repeat the same exercises in each home. The difficulty for the Court Welfare Officer is that even quite young children display a loyalty to parents. So the difficulty we have is that you may be in one household and you may be asking 140 the child do they want to spend more time with the other parent, and they will say, ‘No, I don’t, I am quite happy with the arrangements as they are’. You then visit the child in the home of the other parent, and they will say, ‘Yes, I want to spend more time here’. Unfortunately we relay that back to the parents and our worry is that the parent will want to encourage the child to say one thing or the other – which obviously we stress that it is important 145 that they do not. Sometimes it is not anything that the parent has said, it is that the child just wants to please both parents, and we would not want to put them in an awkward position really.

Q8. Mr Gawne: Presumably though, sadly, I suppose it is human nature there will be quite a 150 lot of coaching done by parents in certain circumstances. Is that relatively easy for you to spot – or I suppose it depends on the case?

Mrs Ingram: It sometimes is: it is sometimes very obvious when a child will come out with a comment that is clearly an adult comment, and it is not something the child would say, and it is 155 out of context with how the child speaks, so that has clearly been heard. The difficulty is, I do not think you can always say the parent is maliciously influencing the child because children overhear things and we often… the parent will say, ‘We never speak in front of the child about what is going on’. But we know that parent will be on a mobile phone in the next room perhaps shouting at the other parent, and they are naive to think that child is not 160 hearing that. I think sometimes children pick up on… We sometimes have, more often than not, mothers who are anxious about contact and they may be saying they are promoting it and they may be seen to be promoting it, but the anxiety they have about that, even if it is not voiced, the child can pick up on that and the child then will say, ‘I don't want to go for contact.’ You cannot 165 identify anything that would prevent that child, but it could be that the child has picked up on the whole anxiety of what is going on.

Q9. Mr Gawne: You said earlier – and this is the last question for me just for the time being anyway – that you try and follow the decision the child takes. I would have thought this is grossly 170 unfair to allow, or to expect, the child to make a decision, added to which it would be all but impossible for a child to make that kind of decision anyway. So presumably what you mean by that is, you follow certain indications that a child would... I am sorry, I am answering it for you. But how would you…?

175 Mrs Ingram: We explain at the beginning to the child that we are gathering their views, but that what happens may not be what they want. And that is quite a difficult conversation we have at the very beginning, if they are old enough, where we explain, ‘You tell me what you want…’. But actually it is not the Court Welfare Officer that makes that decision, they will only make a recommendation, and when it gets to court the Deemster will make the final decision 180 and it may not be what you want – because a child cannot make a decision on what is necessarily best for them. Sometimes a child may say they do not want contact and as part of our involvement we can pick that apart and see why, and it is often not… The reason they do not want contact is not the one that you would imagine it would be. Children keep things inside them, they do not voice 185 things, and sometimes it is something that is quite simple to be sorted out.

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Often perhaps it means that they cannot access activities etc, or they may want to play out with their friends on the weekend and that going to somebody else's house on the other side of the Island, where they have no friends, is not what they want. So you can pick it apart and it is sometimes quite a practical, straightforward reason. 190 The Chairman: Okay. Mrs Beecroft?

Q10. Mrs Beecroft: Yes, thank you. I think you said at the beginning that you take statements off both parties. I am just 195 wondering: do you check the validity of those statements?

Mrs Ingram: The statements are provided by the parties to the court, via their advocate if they have one, so we just read those statements. Then when they come in for their interview, we might refer to those statements. 200 The difficulty we have is that often there are two versions as to what has happened, and nobody else was there other than these parties. Often when you read the statements and you interview them you cannot really believe that they actually lived in the same household, because the stories are so contradictory. So where we can we… well, shall I say, the report is based on evidence. So unless we can 205 evidence it, then in the report it will say that the father said this, or the father alleged this, or the mother described this. So we are stating in our report that we cannot evidence this, we do not know whether it is true or not, but this is the one version of events, and this is the other. If there is domestic abuse then they will have a fact-finding hearing, and that fact-finding hearing will decide whether there is sufficient evidence of the domestic abuse for that to inform 210 the decision that is made for those children. It is difficult and parents do often complain about the report: they are not really complaining about the report, they are complaining about the Court Welfare Officer not believing their version. The Court Welfare Officer has to state, ‘I have no evidence, so I don't know whether this is true or not, so I am just stating the facts’. 215 Often… if, for example, they give different versions about disagreements about matters: if perhaps someone has been late for contact and then an argument has ensued between the parents. Often we then realise a child has observed that, and so then you could talk through with the child and you may find that is what is upsetting the child, and maybe the child does not want to go to contact because they are thinking, ‘Every time we go to contact my parents are 220 going to argue, and I don't want that to happen’. But it is difficult.

Q11. Mrs Beecroft: I think you said you asked for permission to look at all the other angles. How do you cope if they say, ‘We are not going to give you permission’, or even if it is just one of the parties says no. 225 How do you collate your report then?

Mrs Ingram: It is unusual for them not to give permission, because we say, ‘If you do not give permission we cannot fully investigate it’ – so it is unusual. They are not very keen when they realise perhaps we are doing criminal records, if they feel there is something that would not look 230 good when they get to the court, if they have some kind of criminal offences. Sometimes we cannot contact them to get the information, we do have cases that go where one parent is absent, etc. If it is the mother, then the mother has parental responsibility, so she can give us the right to access that information on the child’s behalf. So as long as we have got the mother’s… we can access, but we would not be able to, for 235 example, do a police check on the father if we did not have his permission.

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Q12. Mrs Beecroft: I know you obviously take – and quite rightly – and set great store by what the child themselves say in the decision-making process. But I think we all know of instances where children will say, ‘Well, I prefer…’ whoever, and it is basically because they get a 240 bit more spoiled, they get more presents (Mr Gawne: Sweets.) off one party than the other. Maybe one party allows them to do more things, that the other one is strict, ‘No, you have got to be in by eight o'clock’ – where the other one will let them stay out until nine or ten o’clock. How do you differentiate between… What if they are saying they want to be with one of the 245 parents just because they get extra treats or extra leeway or whatever it is?

Mrs Ingram: By simply asking them really, ‘Why do you want…?’ If they are saying, ‘I want to spend additional time with …’ the other parent, then part of that conversation will be, ‘What do you do then?’ ‘What do you do when you are with your mum or 250 your dad?’ ‘What is different to when you are with…’ your other parent. And as part of it… because they are seen several times, there is quite a relationship developed – and of course the discussion is about all sorts of things. So we might be talking about the new puppy they have got, or what they do at school. So they do not quite realise… it is not a series of questions that they feel they are answering, 255 we are discussing all sorts of things. And so as part of that then you can build up a picture. So then you may discover… because children often quite naïvely will say, ‘It's great, because when I go to Dad’s I go to bed at eleven o’clock, and we have pizza’. They do not often realise the significance of what they are telling us – until we start writing furiously. 260 Different parenting styles is one of the huge issues that we have, where we try and get the parents to have the same boundaries, have the same timescales for children going to bed, etc. But that is very difficult, and parents do not agree on that, and they do have their own ways of parenting and some are more strict and some are more lax. When they were together as a family that probably did not matter because often in families 265 there is the one parent who perhaps is more disciplinarian than the other: it is only when they separate that it becomes such a huge issue.

Mrs Beecroft: Thank you.

270 Q13. The Chairman: Before we move on to going into some of these areas in more detail, I will ask Miss Brayshaw: do you have any opening comments you would like to make on the petition, having read it?

Miss Brayshaw: I echo what Mrs Ingram is saying really. At the point that we become 275 involved it is normally the acrimony has become so difficult – again, it is still very difficult to see what is the reality of the situation. The court has always had redress to ask Social Care to undertake investigations in private law matters if they have got concerns about the children But those cases that are coming to our attention in the main tend to be either referrals coming directly from the Court Welfare Officer 280 who is concerned, or the allegations and counter-allegations made by parents, which again puts our staff in the same position of trying to work through what is the reality of the situation for the child. So it is the same issues, with a slightly different amplification on those.

285 Q14. The Chairman: I suppose you have got a very difficult job really, because I would imagine a proportion of those are allegations that have come from two parties that have just fallen out. But at the same time you have to investigate them all in case there is something more serious behind them.

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Miss Brayshaw: We would have to fulfil – 290 Q15. The Chairman: So I apologise for putting you on the spot: do you have a rough idea on the proportion of how many of them are found to be simply warring factions, and how many are genuine cases that come out the other end that you do identify? If you do not have that information then – 295 Miss Brayshaw: In number terms we are still talking very small numbers, we are talking single figures that we are currently involved in. Out of those numbers that we are currently involved in, I would say 80% of those are allegations and counter-allegations that, on professional judgement, actually have no substance 300 in truth. But then you become concerned about the escalation of the emotional impact on the child of the fact that there is no meeting point between the parents, and then the stress on the child becomes really significant.

The Chairman: Okay. Mr Gawne? 305 Q16. The Clerk: Sorry, can I just ask: does that mean that even if the child is not being abused, has not been abused at the beginning of this story, the fact that there is this ongoing court battle is itself a form of abuse?

310 Miss Brayshaw: It can be, in very small numbers of cases. That would be an extreme situation, but it is not unknown for that to occur.

Q17. Mr Gawne: Would you agree that inevitably, your having to make opinion-based decisions ultimately… you gather as much evidence as you can, but ultimately you cannot 315 absolutely be sure one way or the other when you are making these decisions, you have just got to use professional judgement to decide on two often quite extreme and poles apart viewpoints?

Miss Brayshaw: If the matter warrants investigation, then we will use the means by which we 320 undertake that statutory function. If there is a sense that this is about acrimony and high anxiety then similarly we will try and have a conversation with the parents first, rather than put the child through a formal investigative process. If we can resolve it that way then we will, but it is ultimately a professional judgement on that. 325 Clearly if the concern is coming from the child itself then it has a different complexion and an investigation would be undertaken. I think we would both agree when you are at that point, the ability to get parents to achieve any agreements is very limited.

330 Mrs Ingram: Yes.

Q18. Mr Gawne: Is there a particular guidance document, or set of documents, that you would use in trying to make these judgements? In most walks of life we have certain procedures and guidance that people are expected to 335 follow. Do you have that?

Miss Brayshaw: We do have guidance on how we analyse and assess the information and what evidence is available to say an allegation may or may not be substantiated – but it does come down to a professional judgement.

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340 I think there are principles by which we can work and sometimes it is the principles which the parents are at odds with. So if you come at it from a point of view that, actually, a child should have a meaningful relationship with both of its parents, but from a parental point of view it is not about having… ‘I am equally entitled to have my child’, because you end up pulling a child in two. 345 So we try and shift the focus to say, ‘How can you have a meaningful relationship with your child, if everybody is no longer living in the same household’ – and try and shift the thinking on that.

Q19. The Chairman: So, if a high proportion, 80%, are – 350 Miss Brayshaw: Of a very small number, I must stress –

The Chairman: – yet you have no substance once you have investigated. Surely that is time that you and your team could be spending on the more serious cases that need attention – and 355 we all read about the cases in the UK that slip through the net. Is it the current process, then, that is leading to parents ending up in this position? Is there anything in particular in the process that would enable the ones with no substance to be cut down drastically?

360 Miss Brayshaw: I would not put it down to the process itself entirely. I think many of our cases do not come through the legal route which they could, which is section 29 of the Children and Young People’s Act, where the allegation is made within the court arena and the court says, ‘I am worried about this, I’ll seek an investigation from the Department’. But because a parent themselves has made the allegation we have to make a judgement on 365 whether to investigate that or not. So I think, irrespective of that, those allegations would probably come through to us. I think if you follow the pathway through that is taken, there may be an argument to say: ‘Is there a different pathway that can be followed, where there is support at an early stage for parents to talk about what the arrangements for their children are at the point that they 370 separate, without having to go into a formal legal process?’ That mediation takes a bigger role in that if there is a need to resolve disputes between them. So there may be other mechanisms before each of them resort to making counter-allegations against each other.

375 Q20. Mrs Beecroft: I just have one: it is about the 80% – of a small number, which I acknowledge. Once you have identified that there was not anything there, that the allegations were groundless, you said that the children are getting more stressed because of this. Do you actually back out at that stage or do you carry on having involvement in those 80% where –? 380 Miss Brayshaw: In the majority of cases we will withdraw from that, and if it is still in the court arena then the court will make the decisions in respect of the care arrangements for the children. I think in the last 13 months in my time here, there have been two cases where we have 385 continued to be involved. And the reason we have continued to be involved is that, at that first point of saying there is no substantiation to what is being said, we are withdrawing, that one or other will repeatedly make allegations, so repeatedly we have had to look at that matter. It is the repetition of unfounded allegations that becomes the concern of itself, rather than the nature of the allegations. 390 Q21. Mrs Beecroft: But most of them you just back out –?

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Miss Brayshaw: Most of them, we then withdraw, and the process continues.

Mrs Beecroft: Okay, thank you. 395 Q22. The Chairman: We will touch on some subjects such as the equality shared residence, we will come to mediation as well, and also legal representation – these are some of the points that Mr Walmsley has raised. If we could then move to the subject of equality: Mr Walmsley wants parents to have equal 400 rights and responsibilities, and equal time and access to their children. Does this happen at the moment? Start with Mrs Ingram.

Mrs Ingram: You mean, in general? 405 It is difficult to answer that because each case is individual, and as Miss Brayshaw said, it is the quality of relationship that the child has with the parent. So it might be that parents come with this view that it has to be equal time – and that does not actually mean that there is an equal quality of relationship. Some parent could perhaps see the child for just hours, or a couple of days per week, and the 410 other parent is the majority carer, and has the child living in what the child sees as their main home. And that parent, even though they are not having much time with that child, can have a really good relationship and be part of the decision-making. So it is being part of the decision- making for that child, and that does not correlate to how much time each parent has with the child – or where the child lives. 415 That is the bit that parents find difficult. When it gets into the court, it is a kind of win-lose situation, people fight for their right to have their say in the child's school, the child’s religion, etc, instead of actually putting the child first and making a decision between them. That requires compromise, and generally these parents, once they get to the court and once they get to us, they have lost all ability to compromise or often put the child first. They feel 420 aggrieved and want to resolve that by somehow achieving this, ‘I am going to have an equal say in my child’s life’. And it is not often practical in that sense for them to necessarily have that equal say.

Q23. The Chairman: Of course it might be that if a child lives at home with both parents they 425 do not necessarily have equal time when they are living together do they? I mean it is –

Mrs Ingram: Absolutely.

430 Q24. Mr Gawne: Just thinking now about the high level first principle. Presumably, you would not argue against a principle which said that both parents should have equal responsibility for looking after their child as a basic principle. It is then: how do you get the warring factions to actually agree as to how that should happen, so that the principle of equality is something that we could all agree to? It is just how 435 you actually deliver that –

Mrs Ingram: No-one disagrees with that principle and it is exactly as you say: it is actually putting it into practice. And there are perceptions that mothers generally will always have care of their children and will always be the primary carer – and that is not always borne out. 440 We have had cases where fathers have been given residence orders on children, and it is the mother who has contact – so it is not always the case. What we often find is that when they are young children it is the mother who has provided the primary care for that child and it would be in the child’s interest for that to continue.

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When you look at the background to it, perhaps the father has been out at work full-time, 445 and so his ability to care for that child has been limited to teatimes or weekends. But we have had it in reverse where the mother has been working full-time and the father then has cared for the children. We had one case where the father worked from home, so he was in a perfect position to care for his four children, and the mother worked full time outside of the family home – and she did 450 not get the residence order on those children. So it is very individual and nobody would disagree with the principles, but it is actually getting the parents to carry that out in a practical sense.

Q25. Mr Gawne: I am aware there is an assumption that it is always favoured in the direction 455 of the mother. But I am certainly aware of one case where the mother seems to have been excluded completely from the life of the child and that mother – and I do not want to go into the specifics of the case – but it certainly appeared to the mother that there was no assumption of equality in the first place. She got excluded at a fairly early stage, the child in her view was then coached against her by the father. She was just completely excluded and never got a chance to 460 get back to see her child and still to this day is in that position. I do not quite know whether I am asking a question or making a statement there but…?

Mrs Ingram: We do have some cases where the child will refuse outright to see the other parent, and the difficulty there we have is that often the parent who is not seeing the child 465 wants a court order to force that to happen. We have to put the welfare of the child first and you cannot force a child to go… A small child, we may be able to take somewhere; an older child, you cannot physically take them, and it would be emotionally damaging to force… If a child is clearly saying, ‘I do not want to see this parent’, it would be emotionally damaging to force that to happen. But what you 470 would need to do is find out why that child is so against that. The difficulty we have is that sometimes the child will not even speak to someone in order for you to find that out. Often the parent who is not seeing the child will say, ‘I want the child to see a child psychologist’, or some expert who can talk them through this and persuade them. But you have actually got to get the child to the expert, and so often we are in a deadlock. 475 We have every sympathy with the parent who is not seeing that child, but in practical terms it is very difficult to move that forward when you have a child who is old enough to actually state that they do not… that they are not going to partake in this at all.

Q26. Mr Gawne: So I suppose in that case it is not just a case of the warring factions of the 480 two sides, you are effectively seeing that the child has the opportunity to exclude one of the parents. I suppose it means that it is all the more important then at the very early stages to make sure that you can get your decisions and get the court's decisions right – because certainly the particular case I am thinking about, the mother ended up getting excluded at an early stage. In her view the father then coached the child dramatically against her and she was left in the 485 position where she could never get to see the child – and she is completely distraught to this day, many years later. I suppose the question is: should there not be some kind of parental right even in those situations where the parent has some sort of rights to at least have an opportunity to speak to their child? 490 Mrs Ingram: The difficulty is if the child is absolutely saying they do not want to see this person. It is forcing that child into a situation they do want to be in and, if it is an older child, actually getting them to the appointment. And the argument that parents come up with is, ‘Well if a child says they do not want to go to school, or they do not want to go to the dentist, you just 495 say “you're going because you have to go”’.

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In lots of cases where children say they do not want to go, that is what we do: we say to the other parent, ‘You have got to tell this child that is what they are going…’. If we have looked at it all and we cannot see anything that supports this child's decision not to go, if we cannot see anything in the history or the statements from the parent then we would 500 be saying you would go. But we would talk to that child and say, ‘Just give it a go, you are going to be at the Children’s Centre and there will be somebody there you will know’ etc – and we can persuade them to go. But some children are absolutely adamant they will not go. When you look at the history you can sometimes identify why that child is so against this other parent: it might be the conflict, the actions of the parents in the past. And that has 505 happened, we cannot change that. But what we do struggle with is parents sometimes will not acknowledge that actually their behaviour themselves affected this child having this negative attitude.

Q27. The Chairman: Does timescale affect these? 510 With younger children, is it a case where the timescale of this process of going through the courts and all the other assessments that happen: the longer the child is estranged from one parent, the more difficult and less willing? Surely that other parent… if the child is very young it is almost like going to a stranger. So the longer it goes on the more difficult it is to keep that bond? 515 Mrs Ingram: Yes.

Q28. The Chairman: What I am trying to say is: is this timescale of dealing with cases maybe adding to the problems that people are facing, and that you are having to deal with? 520 Mrs Ingram: When we are required to do a report we get 12 weeks to write that report, and in that 12 weeks – if we can, if there is no contact taking place – we attempt to get contact started. That helps, because we can see how that works and then when we go back to court after the 12 weeks and the reports have been filed, we can say we have initiated contact and it 525 is going well and now we want to increase it. So hopefully the parent who is now in contact is not waiting 12 weeks. In some cases the parent who has care of the child will say it is not safe for the child to have contact with the other parent, ‘That is why I stopped it, this child is not safe’. We cannot force that to happen then, only the court can order that, so that parent will wait at least 12 weeks and 530 at least another four weeks afterwards before it gets to a court hearing. And it is only then at the court, the court will say, ‘I am now ordering that contact will take place’. So our involvement does extend, because we may then observe weekly contact for several months while we are gradually building up.

535 Q29. The Chairman: But it might be that the breakdown in the relationship… there is obviously a time period, between the relationship breaking down. For example, if you have got a two-year-old child, the relationship breaks down, the parents go their separate ways, there is then a period of time (Mrs Ingram: Yes.) whilst things get to a stage where they then end up going to lawyers. 540 So it might be that before your 12-week period starts there could well be four or five months. And of course for a two-year-old, surely that time is all time where the bond with the other parent is being lost. So that when it comes to the three months, plus the rest of the process, the two-year-old may now be a three-year-old and the other parent may in fact be almost like a stranger to them. 545 That surely cannot be helpful?

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Mrs Ingram: No, and the younger the child, the greater the influence of the time. The time is greater for the younger child. And, yes, these parents… and the difficulty then is when we do introduce contact we are introducing a stranger and so that makes the introduction of contact 550 much more difficult, because it often then would have to perhaps be at the Children’s Centre where there is somebody supporting them. An explanation would have to be given to this child – it is usually the father, I would have to say – ‘This is your father’. And they have to get gradually used to that child. So it can stretch out for a long period of time and the difficulty is that even if it is going well, 555 and they are seeing the child for two hours every Saturday at the Children's Centre, and it has all gone well, you could then have a blip – and that might be that the parent does not turn up, or the parent who has care of the child says the child cannot go because the child is ill. Lots of different reasons. So the momentum of the contact is disrupted and that can extend it again, longer. So it is not always easy. 560 The Chairman: The Contact Centre is something we actually want to come to in a moment, so we might come on to that, but first I know Mrs Beecroft…

Mrs Beecroft: Yes, I have just got one question really arising from that. 565 I do acknowledge that you get warring parties and they just want their rights, and they are not thinking about the child.

Mrs Ingram: Yes.

570 Q30. Mrs Beecroft: But there must be cases where somebody is saying, ‘I want my rights’, because they actually believe that, whether rightly or wrongly, you could not judge that, that what they want for the child is in that child's best interests. You used religion and – I cannot remember what the other one was – (Mrs Ingram: Education.) Yes, schools and religion, I think it was. 575 But there could be other factors that one parent is prepared to fight and say, ‘No, I want…’, because they believe that what they want for that child is in the child's best interest, maybe not necessarily their own. How do you differentiate between that?

580 Mrs Ingram: It is our professional judgement on what is in the child's best interest.

Q31. Mrs Beecroft: So you would judge then on what school or religion –?

Mrs Ingram: No, we would put the child’s interest forward so we may look at what is the 585 most suitable school for that child, in that… say, for example, does the child have to travel a long distance to school, are we moving the child to another school and is that necessary? So we would look at the evidence as to what probably would be the best school for that child. But we still can only make a recommendation and it is still the Deemster who makes that decision. And I have to say the Deemsters and the High Bailiff who make the decisions are not 590 happy if parents cannot come to those agreements themselves – they do not want to be making these decisions on day-to-day issues, these parents need to be making these decisions themselves. But, as you say, some cannot. And each parent does genuinely believe that their view is what is in that child’s best interest – but it is not the same view.

595 Q32. Mrs Beecroft: Yes, so they are not just warring for the sake of it, I suppose is what I am saying, as they are at times.

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Mrs Ingram: Yes, they genuinely believe that what they are wanting is in the interest of that child, and that is why it is difficult for them to compromise. 600 Q33. The Chairman: Can we come on to the Contact Centre now because you mentioned that just before. Mr Walmsley was saying… he says it should only be used when needed, but he also says there should be input into the decisions. 605 One of the things we would like to explore is: what is the Contact Centre, who runs it, and is it sufficiently resourced? And also what are the limitations of the facility?

Mrs Ingram: I think the Children’s Centre could probably answer this question better than I can, but I can give you my view on how I see their place within this. 610 It is the Isle of Man Children's Centre, it is a charity, that is also Government funded. The part that we use, which is the Contact Centre, is run on a Saturday at Douglas – I am not sure if there is another contact centre in Ramsey…

Miss Brayshaw: Yes, there is. 615 Mrs Ingram: Referrals can be made by the parents directly to ask for contact to take place there, or we can make a referral to ask for contact to take place there. We would not normally do that, that would not be a usual process, simply because there is a waiting list and so you may not be able to initiate the contact immediately, because the parents 620 have to go on a waiting list, because they are very busy – and we think that should only be used if there is an actual risk to the child of having the contact elsewhere under other circumstances. But often it is one of the parents who will say, ‘I don't think that it is safe for this child to have contact so I want it to take place at the Children’s Centre’. We cannot override that, even if in our view that this parent is safe enough to have this child 625 – we cannot override that until it goes back to court. And then the court can make an order. Of course you would not make that decision until you had investigated it to find out whether there was any sort of validity to these alleged risks. And often if, as you say, a child has not seen a parent for some time, then you could use the Children's Centre because there is a member of staff there to support. 630 I know that the need for the Children's Centre contact part, there are more people wanting to use the centre than they have spaces for.

Q34. The Chairman: So, what is actually there: what is it, what is at the Contact Centre?

635 Mrs Ingram: At the Contact Centre? Rooms with toys etc, that the children can play with. You can have degrees of supervision. So if you were very concerned about a child or you were introducing a child to a parent they were not familiar with, you can have closely supervised contact where somebody will sit with them and they can overhear. So say, for example, a parent is alleging that the parent when they have contact with the child says inappropriate things, you 640 can have somebody sat there who will be able to listen to what is being said and observe them playing. Then it graduates out to somebody sat in a room, but not closely observing; and then they have ‘supported’ where they just use the Centre, and they can use the room and the toys, but nobody is actually there in with them. 645 Then also we can use it as a drop-off and pick-up, so if it does not work that a child is picked up from the home address, one parent could take the child to the Contact Centre and the other parent could pick the child up from there and drop the child off.

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Q35. The Chairman: So there is no actual decision-making process by the Contact Centre, it is 650 merely a facility?

Mrs Ingram: Yes.

Q36. The Chairman: Okay. 655 You also mentioned the major decisions – and I think it is in the submission – that contentious issues can even be something as what everyday life would be considered, like the hairstyle of the child. But in terms of major decisions I think you said that it is the court effectively that would then decide?

660 Mrs Ingram: Yes.

Q37. The Chairman: So again it is a court process, and that is the only way of dealing with it at the moment. Which I suppose then brings us on to mediation. Mr Walmsley favours compulsory 665 mediation: there is the ability to have mediation at the moment but it is not compulsory. Do you have any views on that?

Mrs Ingram: Again, it would probably be a mediator that you need sat here answering this. I know that currently when parties arrive at court, they are asked if they have undergone 670 mediation. If they have not then they are advised to before the matter goes any further, and they have to give very good reasons as to why they would not be willing to go through mediation. Some go through mediation and still do not manage to resolve matters and they end up back at court; some go through mediations, partly resolve it, but there are still one or two 675 outstanding issues, and they go through the court; and some just refuse, really, to go to mediation. Making it compulsory would go against the principles of mediation, in that you are supposed to commit to it voluntarily, and I guess the mediation… definitely the mediators here who are registered would say that it has to be on a voluntary basis. 680 Q38. The Chairman: Is that where then the contention comes in, because a court process… it is a very aggressive process going to court, the whole experience, and would there not be a level of… I understand what you said about mediation has to be voluntary, but are we then saying that 685 there needs to be another layer between mediation and court, which is a little less court-like in its procedures?

Mrs Ingram: I suppose it would still require the parties to voluntarily take that up though, if it is not part of the court process. 690 Miss Brayshaw: My understanding, reading some of the research evidence that has come out of the Family Justice Review in England, would suggest that whilst you cannot compulsorily make somebody do something that is in essence a voluntary arrangement, you could actually introduce a principle whereby you had to demonstrate that you had exhausted all possible 695 opportunities of reaching agreement, before it goes into court. So you are almost persuading people to demonstrate that they have gone through certain parts of a process before going into the court arena. The Family Justice Review actually suggests a pathway through that, where both parents have access to informal advice but expert advice, to have a parenting agreement in the first 700 instance.

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If they cannot achieve a parenting agreement between them, then the next stage would be to consider would mediation be helpful in reaching a resolution on those matters – and then actually court would only be a final resort for those most entrenched relationship breakdowns that cannot achieve any agreement at all. 705 Q39. The Chairman: Do you find that mediation… Where we have one party, and this is all linked with legal representation, really, do you find mediation is used by… Who tends to use it more? We also have to deal with one of the subject matters of one party getting legal aid and the 710 other not, which is very contentious. Do you find that mediation is used when both parties maybe do not have access to legal aid funds, therefore it sways them in the direction to try and resolve it at a lower cost?

Mrs Ingram: I do not think that is related, really, I think it is down to the individuals and 715 whether they believe mediation will assist. I think they have to be at a certain level where they really want to resolve this and can see that mediation is the best way of doing it. If you come with the attitude that you want to ‘win your case’ then you are not going to be really thinking that mediation is the way you want to go forward. So I do not think it is related to that, but I do agree there is a great deal of unhappiness that 720 one party who gets legal aid would get the mediation paid for them and the other party will not. But either way, paying for mediation is better than paying for an advocate.

Q40. The Chairman: But if one party has the legal cost being picked up by somebody else, then there is less of a tendency to look at those other avenues because somebody else is paying 725 the bill. It has been a very contentious issue that we have been dealing with in Tynwald. And it may be not the best use of the legal aid funds, particularly if many of these decisions as we heard earlier are just fired up by unfounded allegations. Surely there maybe should be stricter controls on where the funding comes from and mediation – although you say it cannot be compulsory because of the whole ethos of it – but 730 there should be maybe a greater lean on people to take stock and consider it.

Mrs Ingram: Yes, and I think to be fair that is in the court already: I think there is an expectation already that they will try to resolve by other means. And in fact, only the other day a matter had already got to court, and there were indications that these parents could agree. 735 It was an issue about which school the child would go to and where the children would live. As part of that the parents then did agree to go to mediation, they could see that some of these decisions could be… they could agree them with assistance. So even though it had already become part of the court proceedings, they were going to then at that point go to mediation. But again in that circumstance, one parent would have been applying for legal aid for that and 740 the other would paying. But still thought it was better than paying advocate costs.

The Chairman: Mr Gawne?

Q41. Mr Gawne: Just a question to Miss Brayshaw – you seem to be getting away with at the 745 moment! You mentioned the Family Justice Review in England: is that something you would recommend to the Committee to read in its entirety, or the specific …?

Miss Brayshaw: There is a specific chapter around private law, (Mr Gawne: Right.) which may 750 be helpful to inform thinking on this.

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Not all of the recommendations of the Family Justice Review – and correct me if I am wrong (Mrs Ingram: No.) – are being taken forward, but there is also a new Children and Families Bill going through the UK which is incorporating some of the recommendations.

755 Q42. Mr Gawne: So it is a relatively easily accessible document I presume?

Miss Brayshaw: It is, yes.

Q43. Mr Gawne: Excellent. 760 The other obvious question, and it may be a bit early to ask it, but I am going to anyway, so apologies to both of you really. Are there obvious parts of the system that, had you a magic wand you could wave, you would like to actually change to make things obviously easier for yourselves, but also easier and get better outcomes for the child? 765 Miss Brayshaw: I think it would be fair to say conversations that Mrs Ingram and I have had together, is that within the framework that we have already got we can probably work in a far more planned way, rather than instances sometimes come between the two organisations in a very unplanned manner. 770 We have had some conversation about whether there would be some mileage in working with the Deemster and the High Bailiff, to actually work through what a good pathway might look like for a family within the legislation that we have got at the moment – so that we are not just ping-ponging families at the request of each parent between the two different organisations. 775 So I think there are things that we can do to stabilise the situation.

Mrs Ingram: Yes.

Q44. Mr Gawne: And what sort of things would be the…? 780 Miss Brayshaw: The things we were thinking about was looking at… We do have cases that come in informally, and is there a mechanism by which something through Court Welfare can be taken back to the court, so the court can make a consideration. Do we need to ask Social Care for a formal investigation of this matter or not, and that way 785 we may be able to contain some of the allegations and counter-allegations that are being made. Also being clear: if we become involved who then picks up responsibility for the final report going into the court, and how just having clearer agreements that if we are involved with a family anyway, then there may be a greater role for us to play in providing information. But just… at the moment they happen because it is custom and practice to happen, but if we had a 790 clear agreement of how that worked it may be better.

Mrs Ingram: I think it is something we referred to earlier, it is the parties having advice early on. I think they feel that… they attempt to sort things out themselves and when that does not work then the next stage is court, possibly with mediation, but I think if they had access to some 795 advice before then. I think that there is not anything available for people to go to when they separate. If, when you separate and you knew that you were going to have issues about who is going to care for the children… I know it is part of the overall divorce and the financial situation etc, but if they could go to someone and have that kind of initial advice from someone who then could advise 800 them, ‘You could go to mediation for this’, or, ‘You could resolve this your own way’. But there is not that middle step –

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Mr Gawne: They tend to go to the lawyer –

805 Mrs Ingram: Yes, once they seek legal advice then that advice will be to go to court. And unfortunately when they have been through the court process, and we have closed the case and an order is in place, they often ring up and ask for advice – and I can give advice and guidance. They are saying to me, ‘What can we do?’ Unfortunately I have to say, ‘All you can do is return it to court’. That is not what I want to say, that is not what they want, it is not what I 810 want. But there is no other… I cannot send them anywhere else for any more advice, advice for both parties, not just for one, and that is –

Mr Gawne: If they would ring up before it had already been to court (Mrs Ingram: Yes.) or 815 there was somebody to speak to, it would make…

Mrs Ingram: Yes, and to be fair we do sometimes have people ring us up before it gets to court and ask for advice, but I can only offer a minimum of advice. I cannot meet with them to talk it through, and that is what we need, somebody to meet 820 with them as a couple and talk it through. I suspect at that point they would not be so embittered, they probably would be quite… you could influence them, couldn’t you at that stage…?

Miss Brayshaw: Yes, and we have the same enquiries and we are in the same position, ‘We 825 are making enquiries, and we have just separated, can you help me get contact to my child’. We cannot do that and we cannot advise them, either, and again the only way we can tell them is that you need to go and see an advocate.

The Chairman: Okay. Mrs Beecroft? 830 Q45. Mrs Beecroft: Yes, just going back to the mediation. I am just wondering why the stance is that it should be voluntary. And I am just going back to a case that I was involved in, and a whole group of us who were actually… we knew exactly what the situation was, and we were not going to back down. That was it, line in the sand. But we 835 agreed that we would go to mediation just so that when we went to court we could say we had tried it. The mediator was excellent and he made us change our minds on certain issues – just by keeping coming back and saying, ‘What about… what about…’. He was just brilliant. So I am just wondering why mediators themselves would be against it being compulsory, if 840 they can do that sort of thing, if they can persuade. I could see why it would be better if everyone is saying, ‘Yes we want to reach agreement’ – but the whole thing of going to court is because they cannot reach agreement in the first place. So wouldn't it be better to at least try the mediation before it went to court, even if it was compulsory – a compulsory attempt? 845 Mrs Ingram: We would probably need a mediator here to answer that… There is research in the UK where they do mediate with people and it is not on a voluntary basis. It is a lot more work for the mediator, I think, to get that person… up to the point where they can work. But the research says that you can overcome that. 850 Currently the stance of the mediators here that are registered, are that it is voluntary.

The Chairman: Mr King?

Q46. The Clerk: Thanks, Mr Chairman.

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855 I have a question which has already I think been partially answered but, a minute ago, Miss Brayshaw, you talked in terms of three tiers. I think you said something like, ‘Maybe people should make a parenting agreement, and if that does not work try mediation, and if that does not work go to court as last resort’. I have written in my notepad here, ‘Parenting agreement: who is supposed to help people 860 make a parenting agreement?’

Miss Brayshaw: The recommendation in the Family Justice Review is that if you have that informal advice and knowledge available, wherever that may sit in the community, that is the service that can assist the parents to make that agreement. And it is just an agreement between 865 themselves, and recording that they have reached that agreement between themselves. And it forms part of their understanding of their own separation. So it is a very informal process, so there is no suggestion that it has got a very rigid format or anything like that, but it is just generally agreeing. But it also gets them to think about and telling the children that these are the arrangements Mummy and Daddy have come to, for example. 870 Q47. The Clerk: So what would be examples of… you said it could sit ‘wherever’ in the community. What would be some of the examples of where it might sit?

Miss Brayshaw: In the UK for example, some authorities may commission that from a service 875 like Citizens Advice Bureau, or something like that; or from Relate which tends to do quite a lot of mediation work in the UK as well. So you would seek an organisation that could provide that support and advice to people.

Q48. The Clerk: And just for the record, is anyone doing this in the Isle of Man? 880 Miss Brayshaw: Not that I am aware of –

Mrs Ingram: No.

885 Q49. The Chairman: Okay, anything else on…? Legal representation we have also touched on, and Mr Walmsley is favouring the ‘levelling down' as he puts it, so if one party cannot afford an advocate then neither should be represented. Would you like to comment on this? 890 Miss Brayshaw: I have to say I am not fully conversant with the legal aid position on the Island at the moment. In principle, and I think my submission said that my suggestion is that I do not think you could be in position to actually refuse anybody an advocate that sought an advocate. 895 The Chairman: Yes.

Mrs Ingram: I just think it would be very difficult for some people not to have an advocate and it would not… I think the perception is that if neither party had advocates it would somehow 900 be fair and equal but actually it would not, if each party has a different level of confidence and intellectual ability, skills, eloquence. We do have cases where people represent themselves – it makes, for example, cross- examination very difficult because people do not understand that they have to ask a question, they often… it is very emotional, they make a statement that you cannot really answer and so 905 the whole…

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I think it would make it very difficult for the Deemsters to gather all the information they needed, because I do not think people have got those skills to know what they would need to provide, what questions they would need to ask etc. I think it would make it difficult. I do sympathise: it is difficult when one person is struggling to represent themselves. And 910 although the court make a lot of allowances and offer assistance – and often the other advocate will assist as well in advice about what needs submitting etc, to the court. It is not an easy situation.

Q50. The Chairman: I think this is probably down to the system we have. 915 One of the complaints we get – and I think this is where Mr Walmsley's point is coming – that he and many others are in a position where they are not exactly flush with cash, but they have too much income and resources to qualify for legal aid. And it is not just in family matters, this is something that is the problem. I know I think, and the courts have also expressed, that it is very difficult for them to function 920 when there is not an advocate present, so we will touch on that. Mrs Ingram, would you like to say more at this point about the issues of ‘expert witnesses and interpreters’ because that is something that has also come up.

Mrs Ingram: Interpreters, obviously, if we identify that someone does not have English as 925 their first language, and would find it difficult for us to interview or express themselves in court, then we would request an interpreter. It does not happen very often. It is a separate issue for the expert witness because often the parties themselves will say that they wish to have for example, a child psychologist interview the child and bring forward their expert evidence. Often that would be on a case where a child would not want contact and the 930 parent would want an expert perhaps to look at that and to see why.

Q51. The Chairman: Okay, I have no further questions on that particular point then. Just a couple more points before we finish this morning. This is for Miss Brayshaw: in your submission you say the DSC would support a review of the 935 law to strengthen the powers of the court in certain ways. Could you maybe talk us through ‘the powers’ as they stand, and where they need to be strengthened?

Miss Brayshaw: Yes. Strengthening was the point we were talking about where agreeing 940 what the guidance needs to be in who does what. Section 29 of the Children and Young Persons Act is specifically… it gives the court in private matters a route into Social Care to ask us to consider whether or not we should make any application for a public order, or if we should take any action to protect a child. Strengthening that would be about being clear what would be the criteria when that order 945 needs to be requested, otherwise there is a presumption that matters would be dealt with by Court Welfare. Section 30 gives the court the ability to actually call on whoever they wish to call on, to provide a report to the court, and quite often that links very much to the presumption that in the first instance it is Court Welfare. So again, just making that criteria clearer to strengthen the 950 understanding for parents of why they may go through a certain route for certain reports to come to the court.

Q52. The Clerk: Right. Can I just follow up on this because I think this sounds like an area where the Committee might be able to at least suggest changes – which is something 955 committees are always looking for, rather than just saying it is all very difficult. Could you… going back to how the two operations interact, is it the case that at any one time the family will be being looked at by one or other, but not both?

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Do you only ever work in sequence or do you work simultaneously?

960 Miss Brayshaw: Sometimes there is an overlap, it would be fair to say, would you agree?

Mrs Ingram: Yes.

Q53. The Clerk: Is that something which you seek to avoid or is it something that just goes 965 with the territory?

Mrs Ingram: It goes with the territory, really.

Miss Brayshaw: It goes with the territory. There are occasions, I think, where it could be 970 avoided if there was clarity on role in that. So if we pick it up and do an investigation the question then is, should we provide the whole of the report to the court or do we just withdraw from that discrete piece of work and offer it back? Sometimes that happens, sometimes it does not. But there can be confusion as to how and why the decision is made for one or other circumstance. 975 Mrs Ingram: But what usually happens in the majority of cases where the Department of Social Care become involved is we have a case open. As part of that we may come across some information that we feel warrants a referral to Social Services, or the parents may come up with something that they feel warrants a referral. 980 Then an investigation is done by the Department of Social Care and, for example, if they looked at that, investigated it and found there was no further action, we would then submit in our report that it had been investigated, there was no further action, and that information would just be contained within our report and we would then go to court with that. Very occasionally, perhaps there is sufficient evidence that the Department of Social Care 985 would become more involved over a longer period of time, and that is when they often… we both work together on a case. But the Family Court Welfare service do not investigate child protection, that is the clear line: that is not our role and we would only assist the Department of Social Care in providing information etc, but the investigation part is clearly done by Social Services. 990 Miss Brayshaw: Yes, yes.

Q54. The Clerk: You have sat here together for the last hour and a half and you have displayed harmony and co-operation and you have said, ‘We have talked about this before and 995 we think we can make it work better.’ Are there any obstacles in your working together which are beyond your reach – I mean, do you need changes in the primary legislation, for example? Are there things that the Select Committee process can help with?

1000 Miss Brayshaw: I do not think there is a need to change the primary legislation, no.

Q55. The Clerk: Secondary legislation?

Mrs Ingram: I do not think so personally, I think it is processes. (Miss Brayshaw: Yes.) I think 1005 we have got the basis there, it is the processes we go through. But I do not think any changes, personally…

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42 SELECT COMMITTEE, FRIDAY, 7th MARCH 2014

Q56. The Chairman: But if I may build on that. You mentioned in your submission the idea of new child arrangements orders instead of the current residence and contact orders. The new 1010 name: will that require provisions or is it simply a new name? And will it be any better?

Mrs Ingram: I know very little about that, we have had a brief discussion – I researched it and so I do not know that much about it. We had a discussion about it, and you have clearly researched it as well, but I could not really comment, I do not know enough about that. 1015 All I know is that is the way they are going in the UK – but it might be worth a read…

Miss Brayshaw: It is in the Family Justice Review, and I think again it was to move it to a principle of agreement rather than acrimony that to bring it down to such clear issues of residence and contact actually fuels the acrimony, rather than saying, ‘You have a responsibility 1020 as parents to consider what the arrangements for your children are when you decide no longer to stay together’. So it brings it down a little bit.

Mrs Ingram: And I suppose it puts the child first, these are arrangements for the child (Miss 1025 Brayshaw: Yes.) so the terminology perhaps will assist in…

The Chairman: Modernising it.

Miss Brayshaw: Yes, I do not think the criteria is suggested to be changed… it is just that 1030 order will replace what would have been requirements under a number of different separate orders.

The Chairman: Thank you. Just before we ask you for any final comments, I will ask the Committee. 1035 Mr Gawne? Okay? Mrs Beecroft?

Q57. Mrs Beecroft: Yes, just one, on the child arrangements things where you are saying that it should possibly be with another agency like Relate or something like that, as it is in the UK, as a suggestion. 1040 I just wondered whether it was… if anybody had thought about just having maybe a template for things that parents could just download and print off that says, ‘These are the issues that you actually need to think about’, to see if they could come to some sort of agreement without any assistance at all, but knowing that they had probably covered all the bases of what they actually needed to address rather than thinking, ‘Oh we have got it all sorted’ – and then a month down 1045 the line getting bitter because they have not sorted a particular thing because they did not think about it at the time. I am just wondering if that would be –?

Miss Brayshaw: The new child arrangements orders in the Family Justice Review sets out the 1050 areas that need to be covered (Mrs Beecroft: Okay.) so you could use that informally as well.

Q58. Mrs Beecroft: Yes, so they could actually go to the likes of Relate or they could just download it and see if they could work through it themselves and then knowing that they had ticked all the areas? 1055 Miss Brayshaw: Yes.

Mrs Beecroft: Okay, thank you.

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1060 Mrs Ingram: I think we have to remember that the majority of parents separate and make arrangements for their children successfully – we are only looking at the minority. And so for the majority who are able to reasonably sort things out for themselves, that kind of information would be very useful.

1065 The Chairman: Mr Gawne has just a final –

Q59. Mr Gawne: That has just reminded me actually. You did say that this is just the minority of cases… I am going to put you on the spot now. Could you give us a rough idea, percentage-wise – and we are not holding you to this – but in 1070 terms of the cases that you are aware of, how many are the extreme cases that have to just go straight to court, and how many would try to follow a mediation route?

Mrs Ingram: I do not know that answer because I only know the ones that come to our attention – 1075 Q60. Mr Gawne: But you will know the ones that have gone through mediation before they go to court?

Mrs Ingram: No, we only know the cases that are referred to us and become an open case to 1080 us. (Mr Gawne: Right.) I presume the courts may gather information on those who have made an application and then go to mediation. We do sometimes have them after mediation, but we would not know the overall numbers. At the moment our offices, between them, carry about 35 cases. Generally by the time they come to us, they are quite entrenched. We do not get many cases 1085 that are easily resolved: they would not come to us really, they would have sorted those out for themselves. I do not know what percentage that is against the number of cases that are going through the divorce courts etc. I would not have that information.

1090 Q61. The Chairman: Does the court normally follow your recommendations?

Mrs Ingram: Yes, occasionally they do not, but yes, in the majority of cases they would, although sometimes we offer more than one recommendation for them to consider, but generally they do agree. 1095 But, of course, if it gets to a final hearing, it is not just the Court Welfare Officer’s report and the statements: people give evidence. So to be fair, the Court Welfare Officer can sometimes change their mind having heard the evidence. They are asked then at the end, ‘Do you still go with your recommendation or would you change?’ Sometimes based on the evidence heard at the actual hearing, you can change 1100 your view.

Q62. The Chairman: But have there been cases where the court has not followed the advice of the Welfare Officers?

1105 Mrs Ingram: Yes, yes. Unfortunately sometimes they… for example, a very old case. The mother wanted to take the child off Island to live somewhere else, and we did not agree with that because we did not think that contact would be promoted. It is extremely difficult, once the child moves off the Island, to arrange the contact for 1110 financial reasons, travelling etc. The child was quite small at the time and the court went against our recommendation.

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The mother moved off Island with the child, and that father did not see that child for a number of years – although he did still manage to write to him and have telephone contact. It was only when the child – the child is now 16, I think – and now regularly travels to the 1115 Island to see the father. But unfortunately that came back to court and we were then dealing with a case that actually we did not recommend it in the first place. And then we were having to deal with the difficulty of the contact. So it did come back to court several times from the child being four to about 15 or 16.

1120 Q63. The Chairman: And of course those are the years lost between the child and the parent, aren’t they, that you can never get back?

Mrs Ingram: No, and if that father had not been persistent, that father could have lost all contact with that child, and more importantly the child would have lost contact with the father. 1125 But the father was persistent and patient – we advised him to be very patient and he did absolutely everything that he had to do. And in the end the child made his own decision and the child now can fly – all the child has to do is be taken to the airport by the mother, and flies here for contact.

1130 The Chairman: Finally? No further…? Okay.

Mrs Beecroft: No I do not, thank you.

The Chairman: Just before we finish is there anything you would like to add? 1135 We will extend an invitation to you that if there is anything following today that you wish to submit then please do so in writing, we would be happy to receive that. In the meantime, if you have anything finally you would like to say before we end this public session?

1140 Mrs Ingram: No thank you.

Miss Brayshaw: Not from me, thank you.

The Chairman: Well, in that case, can I thank you both sincerely for coming in this morning 1145 and giving us a very helpful insight into your work – we do appreciate it. So with that we will end this session and the Committee will now sit in private.

The Committee sat in private at 11.59 a.m.

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45 46

31st March 2014 Evidence of Mrs Tina Hall, mediator

T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

S E L E C T C O M M I T T E E O N T H E C A R E A N D U P B R I N G I N G O F C H I L D R E N ( P E T I T I O N F O R R E D R E S S )

͏HANSARD

Douglas, Monday, 31st March 2014

PP2014/0064 CUC, No. 2

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2014

49 SELECT COMMITTEE, MONDAY, 31st MARCH 2014

Members Present:

Chairman: Mr J R Turner MLC Mrs K J Beecroft MHK Hon. P A Gawne MHK

Clerk: Mr J D C King

Contents Procedural...... 29 EVIDENCE OF Mrs Tina Hall, Mediator ...... 29 The Committee sat in private at 11.53 a.m...... 46

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Select Committee of Tynwald on the Care and Upbringing of Children (Petition for Redress)

The Committee sat in public at 10.30 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR TURNER in the Chair]

Procedural

The Chairman (Mr Turner): Good morning, welcome to this public meeting of the Select Committee on the Care and Upbringing of Children. I am Juan Turner MLC, and I chair this Committee. With me are the Hon. Phil Gawne MHK, and Mrs Kate Beecroft MHK. 5 For the purposes of Hansard, if we could make sure that anybody in the Chamber today has their mobile phones turned off, as this could interfere with the streaming and recording equipment. And also for the purposes of Hansard I will be ensuring that we do not have two people speaking at once, mainly for the Committee. The Committee was established by Tynwald on 10th December 2013. It was resolved that a 10 committee of three members be appointed with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876 as amended, to consider and report to Tynwald by June 2014 on the petition for redress of Mr Philip James Walmsley presented at St John’s on 5th July 2013, seeking a review of the law relating to the care and upbringing of children especially in cases of broken marriages and other relationships. 15 In accordance with Standing Order 5.10(4) we have heard evidence from Mr Walmsley, but given the subject matter of his petition we have taken that evidence in private. On Friday 7th March we heard oral evidence in public from Mrs Pat Ingram of the Family Court Welfare Service, and Miss Deborah Brayshaw from the Department of Social Care. One of the themes of Mr Walmsley’s petition is mediation, and today we are pleased to 20 welcome Mrs Tina Hall, a mediator.

EVIDENCE OF Mrs Tina Hall, Mediator

Q64. The Chairman: Good morning and thank you for coming in to see us this morning. So to start with, then, just for the record if you could state your name and any title you would like associated with your name.

25 Mrs Hall: Yes, my name is Tina Hall, and I am a family mediator, I am also a fellow of the Chartered Institute of Legal Executives.

Q65. The Chairman: Okay, thank you very much. We identified you through the Manx Family Mediation Network. Could you tell us a bit about 30 that, please?

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Mrs Hall: Yes, it is an informal group of mediators who have trained on the Isle of Man and are associated with the FMA, the Family Mediators Association, which is based in England. We meet fairly regularly for discussion and for training sessions, and the members of the network co-mediate with one another. 35 Q66. Mrs Beecroft: How many people are in your network that are qualified mediators?

Mrs Hall: At the moment there are about six or seven. There have been quite a number of trained mediators on the Island who for various reasons have dropped back, but there is the 40 core group of about half a dozen at the moment.

Q67. The Clerk: Sorry, could I ask what ‘dropped back’ means?

Mrs Hall: I think perhaps the reasons of each of them are slightly different. The training itself 45 is quite expensive and there is an ongoing requirement both for CPD – which is the continuing professional development – and for fees which are paid to the FMA amongst other things. That can become too expensive to some if they are not getting in a great deal of mediation work. So there are various reasons that some people have dropped out, but I think that is one.

50 The Chairman: Apologies, I should mention we also have Mr Jonathan King, who is our Clerk to this Committee. Mr Gawne.

Q68. Mr Gawne: Just on that point then about work: presumably, what you are saying in a 55 roundabout way is that there is not enough work for the number of qualified mediators on the Island at the moment?

Mrs Hall: I am not sure whether there is not enough work or there is not access for people that would like to try mediation, or for people to know more about mediation, to enable them 60 to get in touch.

Q69. Mr Gawne: So in the current way things are set up, there is not enough capacity for you to be employed doing your work, I suppose is the answer?

65 Mrs Hall: I do not think there would be capacity for 15 people. I am not sure that it could ever, or possibly, be a full time profession for any one person. It may do in the future if interest in mediation grows.

Q70. The Chairman: So how does this work then? Are they effectively individuals who are 70 paid privately by those attending? Could you maybe just explain a bit about the process?

Mrs Hall: Yes. The mediators themselves will… what is the right way round to describe it? Let’s start at the beginning, I think, when people come for mediation. 75 It tends to be either through referral from advocates, perhaps through the courts where they have had information from the courts that they should try mediation. There is a link on the court website for the mediation network, and that in itself holds further information about each mediator who wants to be on the register. There is a central register on the court website as well of all FMA-accredited mediators. That 80 enables people to contact directly any one of the mediators that they choose to. We tend to work together in pairs, because co-mediation is the best form of mediation, where you have got balance with the two people in the room and two mediators. The fees that

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are charged are determined by each mediator, so there is not just one cohesive and single point at which you can get all of that information. 85 Once people come to mediation, the process is that they come to an intake meeting, and usually each of the parties comes separately. We give them information about mediation, we tell them how it works and assess whether in their circumstances, and for those particular two people, we feel that mediation is appropriate for them. It is not until that is done, that process has occurred, that we then invite anybody to a 90 mediation session. The sessions themselves take about an hour and a half – that seems to be an optimum time for mediation. We work on principles, and there are four basic principles for mediation. The first is that it is voluntary for the parties including the mediators, and from our point of view that voluntariness needs to be part of the mediation. 95 Q71. Mr Gawne: Why is this?

Mrs Hall: If you compel someone to try to reach an agreement through discussion, it is very difficult if they are opposed to that in the first instance. If what you are saying to people is: 100 ‘Come to a meeting, let’s discuss those problems, you are welcome to attend, if you feel it is not for you then that is fine, off you go’. In that way, you can encourage people to take an interest in what is going on, rather than to put up barriers in the first place – and it is the old story of leading a horse to water, isn’t it? That is one of the basic principles with mediation. 105 The others are that mediation is confidential, which enables people to discuss proposals that they otherwise would not put forward. That they are able to consider options that may be slightly out of the way for them, but it gives you a proper and full discussion of the circumstances. The mediators themselves are impartial: we explain that we are not there as arbitrators, we 110 are not there to make decisions about who is right and wrong, but to help people to reach their own decisions, to put their own proposals forward. And we have got a process of doing that, there is a procedure of doing that through the mediation. So the parents themselves remain in control of the proposals for their children, and ultimately any decisions they reach are for them to reach – and we would say that in those sorts 115 of circumstances that is the right way about. Parents should be the ones that are making decisions for their children, unless they are unable to do so – and that is when they need to move further on. We feel that mediation is the way that encourages parents to start working together, even if they do not necessarily agree. 120 Q72. Mr Gawne: So, as a mediator, you will recognise that it is very rare, if at all, that there is a black or white answer to something. So in relation to compulsion, when does ‘strong encouragement’ become compulsion, and is there more that we can do to ‘strongly encourage’ people before it becomes compulsion, I 125 suppose?

Mrs Hall: I think the courts already very strongly encourage people to attend mediation, both when they are considering putting an application into court, because all the paperwork says, ‘Have you tried?’ ‘Will you go?’ ‘If you haven’t, why not?’ 130 So there is an encouragement there. There is a great number of the advocates involved in family law who are encouraging about mediation and encourage clients to try it, because it is a kinder way for them and their children to reach some form of settlement. Perhaps the only place that there might be compulsion would be to attend an intake session, to find out more about mediation.

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135 I know in England that is the path that they have taken: you are not compelled to attend at mediation, but you are compelled to find out about it and see whether it is appropriate for you and your circumstances.

The Chairman: Just before we go to Mrs Beecroft… 140 You mentioned about it being voluntary, of course. That is at odds with what the petitioner is asking for and why we have this investigation. I will be asking you in a moment, maybe, to give you the opportunity to make some sort of statement or response if you wish to do so to the petition. But first of all, I know Mrs Beecroft wants to come in. 145 Q73. Mrs Beecroft: Yes, I was just a bit curious about the co-mediation. Is that used just in family matters, and how does it actually work? Is there a mediator that is with each side – (Mrs Hall: No.) because that would defeat the object, wouldn’t it? So why is it that two are beneficial? 150 Mrs Hall: No, we do not take sides at all. The purpose of it is to make sure that there is balance within the room. If I was talking to two of you and you had a discussion and you were on opposing sides, it would be very difficult to remain impartial or to appear to be impartial. You would be drawn towards one side, or even 155 listening to one side more than the other if one person is able to put their point across more strongly than the other, to appear to be listening to that person. All of those things can make the mediation itself imbalanced, and what we are trying to do is find balance within the room so that the couple there feel that we are encouraging them to have a discussion. Any time that we interrupt them it is not to prevent them from speaking or to allow 160 the other one more space to speak, but to make sure that the conversation runs smoothly – or as smoothly as possible. To do that with four people is far easier. It also enables you to – because it is very intensive work – it also means that you have got someone to cover your back all of the time. If there is something which comes up in the mediation that might throw one mediator, the other one 165 should be able to catch that. We also try to achieve a gender balance. It is not always possible, the majority of our mediators are female, so… but the ideal is to have one male and one female co-mediator with a couple.

170 Q74. Mrs Beecroft: Okay, and is it just in family matters that you use your co-mediators?

Mrs Hall: It is, yes, and family mediation is quite different from other forms of mediation, it is a specialised area.

175 Q75. The Clerk: That sounds really interesting. Can I just ask out of curiosity: do you find that the parties tend to latch onto one or other of the co-mediators and say, ‘Oh well, you're the one that is on my side’. Rather as, if you were their advocate… ?

180 Mrs Hall: They can do, and it is something to avoid. The other thing that we can do as mediators is to start a separate discussion between ourselves, which just takes away from the intensity of the feelings sometimes between two people... ‘What you think we should do next?’ ‘Where should we go with this?’ ‘Shall we try this next?’ 185 Talking to each other rather than the couple concerned can help things feel more natural, I think.

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Q76. The Chairman: Just before we move into the specifics of the petition, a few more questions really about the process and about yourself, if you do not mind. Are you a lawyer as well, or do you practise law? 190 Mrs Hall: On the Island I am a legal executive. In England you have rights of audience as a legal executive, which is a slightly different position. So, I am a lawyer but not practising.

195 Q77. The Chairman: How long have you been practising mediation in the Isle of Man?

Mrs Hall: I qualified in 2009, so about four and a half years now.

Q78. The Chairman: Okay, and the validation process… because you were saying that the 200 majority of them are people who come forward and say they wish to do this. We have heard a few about different organisations, the Family Mediation Association, and also one I have got down here… is it the Logis Family… ?

Mrs Hall: Yes, that is my business. (The Chairman: Right, I see.) That is the name under which 205 I conduct mediation. Part of the reason for having a separate name is that I feel that I would like mediation itself to be promoted, and not the mediator. An ideal situation would be at some point in the future that there can be a centre for mediation if that can ever happen. That is one of the reasons for having a separate name. 210 Q79. The Chairman: Right, is that just yourself or do you employ other mediators, or are they individuals?

Mrs Hall: They are individuals, but we co-mediate. I tend to co-mediate with John Kermode, 215 who is a child psychologist of 30 years’ standing, and with Sue Smith who has a background in teaching and worked at the Children's Centre for a great deal of time, and was heavily involved with the start-up of mediation on the Island. There are other mediators, we do work together from time to time, it is just a matter of… My business has only been running since October, I would add. 220 Q80. The Chairman: Okay, that is really useful background, thank you very much. With regard to the petition, you have obviously been sent a copy of the petition. Would you like to make any opening statement with regard to that, or give us a verbal submission?

225 Mrs Hall: Yes. I think, first of all, that I have picked up on several points that were raised, some of which I cannot give a response to. But it seems that the main points are: that both parents should have equal rights and responsibilities over their child; that parents should attend a minimum of three compulsory mediation sessions before going to court; that should mediation fail, the parents should be without legal representation in court; and that shared 230 residence orders should be issued. I think that neither parent should be disadvantaged, and that each should be entitled to equal time and access to their children, and that the Contact Centre should only be used when there is a proven danger to a child. Those seem to be the main points to me. 235 On the first point in relation to equal rights and responsibilities for children: it is very difficult when parents are presenting and saying, ‘I have a right to…’ In fact, I think the emphasis is slightly the wrong way round: the child has rights. And if that emphasis can be made, the child's right is to have both parents involved in his or her life.

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The parents have duties and responsibilities, and part of those duties and responsibilities are 240 then to uphold the right of the child. That then keeps everything as one, doesn’t it, instead of splitting it all off, which is what parents feel to me to be trying to do when they separate? Again, when we are talking about compulsory mediation, we have covered most of those points, but we cannot say that people must attend mediation – it must be voluntary, it is part of how mediation works. The compulsion, perhaps, could be that people should attend an intake 245 meeting, and should find out more about mediation and talk to a mediator. Very often people are very opposed to mediation, thinking that it is something that is going to take away something from them when, in fact, it enables both parties to sit down and talk together in a way that sometimes they have not done for a very long time.

250 Q81. The Chairman: Have you had cases, though, where the party or one of the parties has…? Usually when they come to mediation it is because one of the parties has driven it down that direction, but the other party may be quite entrenched but has come along anyway. Have you had cases where they have actually come along with the attitude of, ‘This isn’t going to work, it’s a waste of time, I don’t want to be here’… but actually, it has resulted in a 255 very – I use the word ‘amicable’ – but it has resulted in the right result for everybody?

Mrs Hall: Yes, it can do and once mediation is explained to people sometimes they say, ‘Well I’ll give it a try then.’ Actually I think the fear is having that conversation in the first place, especially where people have been estranged for quite a period of time and have drawn their 260 battle lines. To start having a conversation that does not start with, ‘What do you want?’ because we do not start there at all. Sometimes you can get very surprising results, and I think there have been – not just my cases, but other people. Other mediators working on the Island will have many cases that they can say people come with a great degree of scepticism, but they are able to achieve something. 265 I was also speaking to the Legal Aid Certifying Officer recently, who said she has noticed that there are some that you feel are failed mediations because there is not what would be termed a result, a settlement at the end of the mediation. But maybe several months down the line, suddenly an agreement is reached. So it might just be the turning point rather than the solution.

270 Q82. Mr Gawne: So you say you do not start on the premise of what do both sides want. So where do you start?

Mrs Hall: We start with an agenda… Well, first of all we actually start with some ground rules as to how we are going to behave 275 within the mediation – sometimes those need to be very strong and at other times we do not need to be very forceful about that. It can be as much as, ‘You really need to listen to each other and give each other the chance to speak’. We then will take an agenda, asking each person what they would like to bring to mediation for discussion. Very often that is the first place that they start to agree: ‘We need to talk about 280 contact with children’, ‘We need to talk about what school the children are going to’. So you are already leading towards some agreement, even if it is only what they need to talk about, and it goes on from there. What we tend to do is talk about options, so we will take an area and say, ‘What are the various options for this?’ ‘If you have a family home, could the house be sold, could it be 285 retained for one of you to live in?’ ‘Could one of you buy the other out?’ We tend to take the whole list of options rather than just the ones that are applicable to that case, because it broadens the approach. It makes it easier for them to consider things properly, I think.

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290 Q83. The Chairman: I think the bugbear that we have found from the submissions we have had with regard to mediation, the argument for making it compulsory is generally coming from those who are finding that the court process is enabling one party to be funded by legal aid (Mrs͏ Hall: Yes.) and the other party is not, and is saying, ‘Well, I can't afford to go to court’, or, ‘I'm spending too much of my income on advocates’. Therefore you should be going to 295 mediation first, and that is where the driver is coming from. Do you think that if the legal aid tap was turned off or restricted for some of these cases, it may well actually encourage people to go for mediation, because obviously if somebody else is footing the bill, (Mrs Hall: Yes.) there is no real incentive to go down that route when somebody else is paying for your legal representation? 300 Mrs Hall: Yes, it is a very difficult one, isn’t it? And legal aid is available for mediation as well. There are two reasons I think why mediation has a slight edge on the legal process. The first is that it is cheaper in any case, so the person that is paying is not quite as far out of pocket. The second is that because the two people are there together, they can see what is 305 happening. They can see, or they can hear, what is being proposed; they can hear what is being said; there are no secrets at all in mediation. Even if one of the parties tells us something outside the mediation between meetings, we bring that back and we share that within the mediation itself. So, as mediators, we do not keep secrets. It is a very open process from that point of view, both people know exactly what is going on. I 310 think that is one of the advantages and perhaps counters that feeling of one is paying and one is not. My own personal view – and it is a very personal view of legal aid – is that regardless of how little money people have, and even where it means that money would be taken from Government to go back to Government, that anybody who is in receipt of legal aid should also 315 pay something, whether that is just a nominal amount so that they feel that they are contributing something to that, they are putting something into it, and it is not absolutely free for them. Again, that is just my personal opinion.

Q84. The Chairman: Do you think it would damage mediation…? You said that one of the 320 important principles is that it is voluntary. But if the compulsion was taken away – because you say, obviously it would not work if it was made compulsory because that is not the whole reason for it – but if, for example, it was resolved that, ‘Well actually, you won't get legal aid until you have demonstrated you have voluntarily gone to mediation’, do you think that would damage the service… or the process? 325 Mrs Hall: Again, it is difficult to see how you are going to do that other than saying that you have to attend an intake meeting. As far as I am aware legal aid is quite strong about asking people to attend at mediation, and if they have not why haven't they. It is the same approach as the courts, I think, that that is the most appropriate route. 330 Q85. The Chairman: Right, any questions at this stage, no? If I could just move on to… We have obviously given you some details about some of the topics we are going to ask you about so you were able to prepare this morning. If we go back to July 2010, there was a Tynwald resolution which said: 335 ‘That Tynwald calls upon the Chief Registrar, the Legal Aid Certifying Officer and the Isle of Man Law Society each to take active steps to promote and to make more accessible to the public positive messages about mediation such as those contained in the Courts Service leaflet CHI01.’

340 And the 2012 Tynwald Policy Decisions Report said:

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‘Literature updated to include references to mediation. Form also amended to require nominated Advocate to report on any attempts to negotiate a settlement. A list of registered mediators is now on Courts of Justice website.’ 345 – which you did mention. Has this helped?

Mrs Hall: Yes, absolutely and it is part of the courts’ very strong message to people that there 350 is a route other than going to court, and it needs to be tried. I know now that all of the application forms include questions about mediation, whether people have attended, whether they have considered it – and if they have, what the outcome has been. There is now some guidance, I think, that has been issued to self-representing litigants in 355 family cases, that again is extremely strong, not just about mediation but about the effect of their actions on their own children, and I think that is extremely good guidance and we, as mediators, support that.

Q86. The Clerk: May I just ask, you mentioned application forms. Is that a form where you 360 are applying for legal aid or where you are applying to the court for a hearing?

Mrs Hall: When you are applying to court for a hearing, yes. I think there is also a question on the legal aid form as well, but I am not absolutely certain about that. 365 Q87. The Chairman: You did mention self-litigants there. (Mrs Hall: Yes.) Would you say that is because of the cost element? Certainly from the evidence we have been presented with, the submissions anyway, is that quite often the party who has not got the legal aid is the one that goes along to represent themselves. 370 The courts obviously do not like that, because the procedures become very drawn-out, but at the same time they have not got the funding available to do it. Why do you think we are in that position, and is it indeed the self-litigants that are the ones that are actually asking for the mediation to take place, and it is indeed the other party who are the ones generally refusing to go – because again I come back to the fact that somebody else is 375 paying their costs, they do not need to?

Mrs Hall: It is really difficult. I think, in general, all parents want what is best for their children when they are separating as well, and however difficult they are finding that process of separation. 380 In a lot of cases it is not trying to avoid going to mediation, as either feeling that it is not going to be effective because the other one will not talk – and it is always ‘the other one’ that will not. Or that there is a fear of meeting up with their partners – that is another very strong feeling that is there. And that need not be for reasons of violence or intimidation: it is just such a difficult process for people to go through that they do not want any more hurt than they need to 385 bear, and going and attending a meeting with the person who is causing that hurt to them is difficult.

Q88. The Chairman: Is this because the situation then becomes all about the dispute between the parents, and it is all about them as opposed to the child? 390 How do you then draw them out of their own what, quite often, is a very bitter dispute, and get them to focus on…? Their dispute really can carry on going on here, as long as they keep it up, but they should be really focusing on the best for the child. How do you manage to draw them out of their own dispute?

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Mrs Hall: It is asking about children, asking how children are reacting to things, talking about 395 how they are doing at school, talking about the effects… I think when people are in that sort of position it is very easy to attribute any effect on a child to someone other than yourself. Just having that conversation with two people together where… and it can be a very difficult conversation, but having that conversation with two people together and asking them to approach it as to how you can do something about it. 400 One of the other things we do in mediation is to say, ‘We can't do anything about what has happened so far’. We cannot do anything about all of the hurt, or the situation where one of you has done something that the other dislikes, or the argument that you had a week last Friday… that has all happened. What we can do is start talking about a better way of managing things for you, and let's talk 405 about the future. And that future is about the children: what is going to be best for them, and how are you going to behave and control your situation so that your children are looked after in the best way possible between you. So we are just turning the focus round, as much as we can. For some people it will not work but for a great number it does. 410 The Chairman: Mrs Beecroft.

Q89. Mrs Beecroft: Yes, thank you. Forgive me, but the more that I am hearing you saying about the service that you give, it 415 sounds excellent. I mean some people go through all the court thing and they never will be able to speak to each other properly again, (Mrs Hall: Absolutely.) whereas mediation can actually solve that. They think it is going to be awful – and it is to start with, to meet somebody that is causing you a lot of hurt. But that is a first step to getting over that and focusing on the children. And 420 you said it is always the other side who does not want to talk, but once you get to mediation there are ways to deal with that and move on. Doesn't that actually strengthen the case for saying, ‘You must try mediation first’? Both sides are saying the same thing, ‘the other person doesn’t want to talk’. Both sides do not want to confront each other, to be in the same room as each other. Both have been hurt 425 usually, it is not usually one side. Doesn't that actually strengthen the case for, ‘At least you've got to try this’… because (Mrs Hall: It does…) I was just thinking long term it could actually make it a lot easier for a big majority. Some it is not going to work, but the majority (Mrs Hall: Yes.) I would guess it is going to make it easier in the future for them to talk to each other when they need to, about decisions 430 affecting the children.

Mrs Hall: Again, I would say the compulsion needs to be to attend the intake meeting, when you are talking to someone face-to-face, and you can talk about their situation. You can try and get that message across much more clearly than either in literature or in a telephone call – or 435 through someone else and with everyone's best intentions of saying, ‘You should try mediation’, until they are in a position where they are sat talking about their own situation and how mediation might help them. That is also the first step, you have got the first foot through the door. The next step to actually having the mediation meeting is not that difficult, and again people's reason for saying 440 that they do not think it is going to work at that stage is very often, ‘Well, the other one won’t come’. Leave that to us, we will deal with that side of things.

Mrs Beecroft: Thank you. 445

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The Chairman: Phil.

Q90. Mr Gawne: Yes, I was just building a bit on what Mrs Beecroft had to say… In relation to the purpose of this Committee, we are here to hear from one side, we do not 450 know… sorry, we have heard from one side, we have not heard from the other side on this particular case, but inevitably the other side will have had a fairly strong point to put over to us... Sorry, I am rambling a bit. You mentioned earlier, though, about the way in which things have improved in terms of getting more information out about mediation. What I would be interested to know is, how 455 good are advocates in actually getting the message over. I would imagine it is not in an advocate’s best personal interest to encourage someone to go into mediation because, quite frankly, they will make more… well, they will make money out of it not going to mediation. So, are you aware that advocates are generally all extraordinarily good and philanthropic in terms of getting the message over that actually mediation is going to be best for you – or are 460 some better than others?

Mrs Hall: As far as advocates are concerned, I think practically every family law advocate that that I have been involved in with mediation has encouraged people to mediation. Most family law advocates – and I say most, because I probably do not know all of them – but in my 465 experience, I think, every family law advocate I have spoken to has wanted to find a way for people to achieve a settlement that does not involve going to court. I do not think advocates push people to go into court, (Mr Gawne: Right.) although there is a viewpoint that they do. I must say I have got a slight interest because I work in a firm of advocates as well, so I will declare that before I go too much further. 470 But family law advocates are very interested in their clients, and their job is to take the standpoint of their client. But it is recognised that going to court is not in a family's best interests, and in the family as a whole. The best interests of the family are to try and resolve things so that they can still be a family unit even though the parents are living separately, and it is how you achieve that. 475 The family lawyers have only had one way to do that for a very long time. But that does not mean that they actually think that is the best way of resolving it. I think on the whole, and I am speaking for the profession that is separate to mine, but on the whole the encouragement is, ‘Let's find the best way for you, let’s stop hurting your children’ – and it is always the children that underlie all of this. 480 Everybody’s interest seems to be… they do not realise how much harm they are doing to their children. That comes through on every level: from their own advocate, from us in mediation, from social services, and from the courts – that parents at that stage are so tied up in their own position and they are taking their own stance with regard to their children, that the overall view becomes obscured. 485 It is not an intention, it is simply the situation that they are in. Therefore finding the best solution for that, I think advocates are encouraging people to go to mediation. We have been having some referrals for mediation before advocates have even taken on clients to give advice. The other thing I would say is that mediators cannot work on their own, they have to work hand-in-hand with the legal services. But where parents have not got enough trust in each other, 490 that any proposals that they reach through mediation still need to have some form of court order. They still need legal advice to see that they are protecting their own interests, and they need legal help to get those court orders. The difference is that those orders are being reached by consent, rather than through litigation and through days in court.

495 Q91. Mrs Beecroft: Yes, thank you.

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I am just curious really… I was just going to bring it up when you did yourself, about somebody could actually disadvantage themselves (Mrs Hall: Yes.) long-term by agreeing to something without even realising that they are disadvantaging. So if they have come to an agreement through mediation, and then one of them… or 500 somebody… do they have to go through a legal service then to get a court order? Would somebody point that out to them that they have actually seriously disadvantaged themselves and, by default, possibly the children, when they are with them?

Mrs Hall: One of the other reasons that we have co-mediation and we would like co- 505 mediation, is that some of our mediators have a background in law, some of our mediators are advocates, I am a legal executive, and other mediators come from children's services, counselling, psychologists, teachers – those sort of things. And having someone from each professional background enables you to cover all bases really. (Interjection from Mrs Beecroft) If you have got one mediator from a law background and one mediator from a family – if we 510 call it that – background, you are then in a position where our knowledge is able to help those people. We cannot give advice of any sort, but we can give information – and that information can be quite strong. It can be the court's approach to things, and that court has published guidance, we are able to refer to that as well. As far as the legal position is concerned, we always encourage people where any decisions 515 they are making are to do with their own legal rights, or their children's legal rights, that they should take legal advice. Again, as I say, we work together with legal services. Whether they do that or not is up to them, in the same way as it is up to anybody whether they decide to take legal advice before they go to court themselves. So people are always encouraged that they should make informed decisions, and the 520 information that they get should be from the best sources – and their legal advice, the best source is from an advocate, so that is where we would ask them to go.

Q92. Mrs Beecroft: So would you recommend, then, that one of the co-mediators should have a legal background? 525 Mrs Hall: Again, it is the best possible (Mrs Beecroft: Yes.) way of approaching it, that the two co-mediators should be male and female, that you should have one from a legal background and one from children-related background, and that way you have got the best spread of information, knowledge, and help and assistance to the people in mediation. 530 Q93. Mrs Beecroft: I am just curious really: how you would actually overcome the hurdle that you are not allowed to give advice, but if you can clearly see one of them agreeing to something maybe innocently, or naively, or just wanting to get the whole thing over, that is really disadvantaging. If you cannot give advice, how would you make them aware of that? 535 Mrs Hall: You can be very clear about someone’s position. You can say, ‘Have you thought about what effect this is having?’ and ‘Have you considered the effect might interfere with your own legal rights?’ ‘Would it be a good idea before our next meeting if you both took legal advice on that situation?’ 540 So we can be very clear about that: it is not that we are not allowed to say anything at all, but we cannot clear advice such as, ‘This would be the best solution for you, because…’

Mrs Beecroft: But you can steer the fact that they need to see somebody who… (Mrs Hall: Absolutely, yes.) Yes, okay, thank you. 545 Q94. The Chairman: One of the main problems of course is, basically, funding and that is what all of these investigations ultimately come back to, is funding. We have dealt with the legal

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aid issue, the ‘one party is funded’… but I would like to maybe turn attention now to the funding of the mediation process, because that also has featured quite heavily in the numerous reports 550 that have come to Tynwald. There was the resolution in 2010, which was:

‘That in developing its accreditation scheme, the Department of Home Affairs should give consideration to whether it would be cost effective to adopt a standard from another jurisdiction.’ 555 The 2011 Tynwald Policy Decisions Report said:

‘a register of trained and accredited mediators able to work in IOM Family Courts will be available from 1st November.’ 560 There was also in 2010:

‘That legislative proposals to enable legal aid funding for early mediation be introduced into the Branches by January 2011 at the latest.’ 565 That legislation was enacted in 2012. So, has that helped?

Mrs Hall: Okay, let’s just go back slightly. I just need to refer to the various questions that you are asking. 570 The Chairman: Yes, the first thing I think is the Department of Home Affairs and their role in this.

Mrs Hall: Yes and the accreditation. The accreditation scheme has already been put in place. 575 The Department of Home Affairs agreed that the Family Mediators Association should be the standard at which we work as mediators, and the mediators on the Island are either FMA- registered and that is renewed every year, or else an equivalent that is recognised by the FMA. There is quite a lot involved in the training: I will just give you a little background on that. The Foundation Training Programme is a standard 52 hours over eight days as a course. Your 580 performance is assessed throughout that course and you either achieve a pass or not at the end of it. The Family Mediators Association course is accredited by the Law Society in England and Wales, by the Bar Council and the Family Mediation Council in England. It is also designed to comply with proposals in Europe for European standards on mediation. 585 The cost of that foundation course is currently £2,640 – with the addition that you have got travel and accommodation costs if you go from the Island to get that course. It is probably a total of around £3,500 in all – and that is for your basic training. After you have trained you have to complete 10 hours working in mediation, which means that you have got to find another mediator and ask if they will allow you to sit in on the 590 mediations and take part in those mediations. In England, the Mediation Services also charge a fee to the trainee mediator, as we would call them at that stage, for gaining those 10 hours experience, and that is quite a difficult thing to do – it was quite difficult for us all to achieve that when we first trained. There is a professional membership that is paid every year, that is currently £190, and you 595 also have to have what is called a ‘Professional Practice Consultant’, because you are not just left to carry on, you are regulated, continually. You have to have someone who you refer your mediations to – and although they are anonymised, you send your reports to your consultant so they are aware of the work that you are doing. So you are not just let loose on the world and that is it, as soon as you have trained. You also 600 have to keep 10 hours continuing professional development training each year. So there is quite

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a lot involved and there is a lot of expense involved on an annual basis for any mediator. So it is something that again meant that some people dropped out at various stages.

Q95. The Clerk: May I just ask a couple of follow-up points, Mr Chairman, thank you very 605 much. I think, Mrs Hall, you said at the beginning that the Department of Home Affairs had decided, or agreed, (Mrs Hall: Yes.) that the accreditation for the purposes of the Isle of Man would be the FMA. (Mrs Hall: Yes.) So, you describe yourself as an accredited mediator. Do you have to convince the 610 Department of Home Affairs at any level? Do they also check?

Mrs Hall: No, I do not think the Department of Home Affairs has an involvement any longer. The register is now maintained by the Court, and each year we send our renewal certificates to the Court Office and they keep us on the list of registered mediators. 615 Q96. The Clerk: Right, thank you. I think you also said that you could be accredited with FMA or another association (Mrs Hall: Yes.) recognised by FMA. What would be an example of that? 620 Mrs Hall: Resolution is one: Resolution have a mediation course that lawyers can attend. And again they have got a similar sort of process, training etc. –

Q97. The Clerk: And that is Resolution with a capital ‘R’? 625 Mrs Hall: With a capital ‘R’, yes.

Q98. The Clerk: Is that an English-based voluntary organisation?

630 Mrs Hall: Yes. I do not know the detail of it but it is a lawyer organisation for obtaining… I am just trying to think of the right way to put this… It is an ADR solution, I think – alternative dispute resolution – (The Clerk: Right.) and they were involved in mediation from the beginning, I think.

635 Q99. The Clerk: Nearly finished. Would the FMA also recognise equivalent qualifications from other jurisdictions? Other Commonwealth jurisdictions, for example?

Mrs Hall: I honestly do not know, I am assuming that as long as your training is good enough, 640 you can then take on your membership with them and keep that CPD going there for a year. I do not know what happens with different jurisdictions.

Q100. The Clerk: But there is no Isle of Man-specific?

645 Mrs Hall: There is not an Isle of Man-specific, no, although we are treated very slightly differently to the English jurisdiction. Our professional practice consultants are Neil Robinson, who has done several presentations on the Island. He is a mediator, solicitor, judge and he is one of our PPCs. The other one is… I am sorry, I am having a blank at the moment… Ruth Smallacombe. They 650 have both been instrumental in setting up mediation on the Island.

Q101. The Clerk: They are both individuals who are not Island based?

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Mrs Hall: They are not Island based. I think Ruth has a connection with the Island, I am not quite sure how… 655 The Chairman: Okay, Mrs Beecroft.

Q102. Mrs Beecroft: Yes, it was just following up on the… I think you call them professional practice consultants – the two of them? (Mrs Hall: Yes.) 660 Can you pick which one you send – and I think it is anonymised – your cases to? (Mrs Hall: Yes.) And what happens, do they review them just to make sure that you are doing things correctly?

Mrs Hall: Yes, if you have got any questions, any problems, any concerns when you are 665 dealing with a mediation, it is someone that you can talk to about that. It is someone that you can say, I am having a particular difficulty with… this type of thing, and they will suggest approaches that might help. They also… you have to either speak to them directly or see them several times a year as well, as part of your qualification – it is simply someone overseeing your work and making sure 670 that you achieve the right standards.

Q103. Mrs Beecroft: And do they charge you individually for this?

Mrs Hall: They can charge us individually for that, yes. 675 Mrs Beecroft: Okay, thank you.

Q104. The Chairman: If we can in this final section look specifically then at Mr Walmsley's petition. 680 He brings up various issues such as equality, shared residence, the major decisions which… I know we touched on this slightly earlier on, but maybe if we could just go into a bit more about that. Legal representation in particular: Mr Walmsley favours the levelling down, i.e. if one party cannot afford an advocate then neither should be represented. Maybe you could comment on 685 that and then we will come on to the Contact Centre. So, equality, shared residence, major decisions from the petition: your comments please?

Mrs Hall: I think the equality is about the parents, isn’t it? I have noticed that the two things that he is saying there is that both parents should be treated equally, but that does not 690 necessarily mean that they have equal time with the children. I think that is a standard that seems to be coming through generally from parents, from people coming to mediation. They are trying to achieve some sort of equality between them as regards the upbringing of their children, and the amount of time that they are able to spend with their children in view of the constraints that are placed on them by their working and things 695 like that. The difficulty is when people… When a parent decides that that is what they must have and what they should have, rather than it being looked at from the point of view of what is best for the child. And again, as mediators, we would always say you need to do it from the child outwards, not from the parents in. 700 It is the right of the child to have a good relationship with both parents and, again, the courts recommend that parents try to achieve that and that they encourage their child to have a good relationship with the other parent, however difficult that might be.

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So those sorts of thoughts, I think, are coming from the ground up. I think there is a general change in the approach of the population as a whole, and with parents as well – not with every 705 parent, not with every situation. But just a change of focus slightly perhaps. The difficulty, as I say, is trying to enforce that equality between two parents when one is saying, ‘I must have my 12 point… whatever… hours in the day’. That is a more difficult situation, because it is then about the parent’s right and not the child’s right. As I say, we would try to emphasise the child’s right. 710 Q105. The Chairman: Well, it leads on, doesn’t it, to the other point Mr Walmsley made about shared residence? He favours shared residence orders but acknowledges that it might not mean a 50-50 split (Mrs Hall: Yes.) in terms of time. He did expand and say that what he means by that is the equal input and promotion in the child's life – that is what he means by a shared 715 residence order, not necessarily dividing the week into two. Would you not agree that in family life it is not as black-and-white as dividing the time 50/50 anyway, (Mrs Hall: Absolutely.) because surely each parent has work commitments and equally there is an important factor. So how does that work? I am sure every case is completely different. 720 Mrs Hall: Every case is completely different, and there is not a norm and you cannot put any sort of rules on this, and that is the whole difficulty with family law, of course. What I would first of all point out is that the majority of people who are separating do not come anywhere near mediation – and apart from getting their divorce through, if they are 725 married, do not bother with advocates either – because they are able to sort this out themselves. And that is the ideal, isn’t it: that parents should make the best arrangements for their children? Then there are degrees. There are parents who need help in making those decisions, and there are parents who are never going to be able to make those decisions themselves however 730 much help they are given. When it comes to going to court, I cannot comment on that because that is not my area, and it is not what mediation is about. But when parents come to mediation the ideal is that the child spends as much time with each parent as is possible – again, whether that is a 50/50 share of their time, or something that needs to be adjusted to fit their circumstances. Sometimes it is just 735 really a realisation by one of the parents that actually, although they might want to spend a larger amount of time with a child, that practically is not possible when you start looking at detail about practicalities of things. Yes, I think that there is a swing towards greater equality, towards sharing of responsibility of children, towards sharing the time that children have. But when it goes to court and there is 740 shared residence, that is a different matter, that is something that only the courts can decide under those circumstances. It is not something I can comment on because that is a decision made by the Deemster for particular circumstances.

Q106. The Chairman: But, surely that is not really in anybody's interest, because it is a very 745 rigid decision which in practice in everyday life does not really work, does it?

Mrs Hall: Absolutely, and I would say that what we are doing is helping people who are not able to make those decisions themselves, or between themselves. Mediation is that extra step forward in helping people who cannot make decisions between 750 themselves, to sit down and talk about it. But the end point is the court. And if at any stage we can stop parents getting to the end point then that is fantastic, and as mediators I think that is our role.

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Q107. The Chairman: Is your job made more difficult by unhelpful views from friends and 755 family of the parties who in these cases undoubtedly always have an opinion of, ‘What you need to do is this’, ‘What you should be doing is that’… and so it goes on. Do you think these outside influences actually are not helpful to anybody in a situation like this where there are all the experts out there giving advice?

760 Mrs Hall: Yes, there are always outside influences, aren’t there? And people need support, they need family support, they need friends. It can be unhelpful when they become dependent on some of that advice that is, again, specific to that person and not to the family relationship as a whole. We try to guide people into considering the family relationship as a whole. The parents may 765 not live together any longer, but there is still a family at the centre of that. With some parents, they are unable, ever, to speak to each other again. It is finding a way that can make that work for their children. We encourage communication as much as we can. We encourage the best form of mediation for a particular couple – but the best form is not necessarily that they can meet each other and 770 say, ‘Hi, how are you? How are the children? What a good time we had at the weekend!’ For some it is never going to be like that. What we are looking at really, is what is realistic for those people, and helping them to achieve the best that they can for their circumstances.

775 The Chairman: Okay, any further questions?

Q108. The Clerk: Can I just ask two more, please, Mr Chairman? Mr Turner asked you earlier two questions at once and you answered the first one and never got on to the second one. And the second one was about the legislation for legal aid for early 780 mediation. (Mrs Hall: Yes.) That is happening now, I think you said?

Mrs Hall: It is happening and I do not think the legislation is that the amendment has actually gone through yet from the last time I looked at it. However, in practice, legal aid is available at 785 the moment through, I think, the Green Form Legal Aid and Advice Procedure. So there is a process whereby legally-aided clients can obtain authority to go to mediation before they start considering going to court, because the other side of it is if you get a legal aid certificate then you actually have to, I think, issue proceedings through the court – and that is the stage that we do not want people to get to. 790 So yes, I think in practice it is happening. I understand that the Legal Aid Committee are looking at the processes as well. But one of the other things that came up from that is not only legal aid funding, I think you also asked about the previous comments that were made in relation to funding for mediation. As mediators we are able to deal with people coming to us and saying, ‘Yes, I would like you 795 to mediate for me’. However they come to us – whether it is through advocates or through suggestion by the court – what would be an absolute ideal would be if there was a centre somewhere, where people could go and get information and have appointments set up for them. I know it is probably not feasible, it would be the ideal from my point of view. I think 800 practically every mediator I speak to – and I have canvassed opinion – has a slightly different viewpoint, from, ‘Mediation should be wholly funded by Government because it is the very best way for children’, to, ‘Really, this is two people’s own personal circumstance and they should deal with it themselves’.

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If, as mediators we are able to provide a service, we need to have somewhere that people 805 can come to, that they can walk in through a door, get information and start talking to someone and making appointments. I think that is the place that we are missing at the moment, you have to go a circuitous route to try and find us, as much information is out there.

810 Q109. The Clerk: Do you think that is something which the public sector could do if it felt like it, or would it be better if it was separate from Government?

Mrs Hall: Probably ideally it would be better if it was separate from Government, but I think we would certainly accept an office with a meeting room, and a secretary would be an 815 absolutely fantastic step forward for us, however we achieved that. Working towards it ourselves, it is going to take us several more years before we can get anywhere near that and I think we are talking about a part-time office at that point.

Q110. The Clerk: Can I just ask how you would see market developing, because we have gone 820 from a position where mediation in the last Select Committee four years ago was something people were talking about but nobody was quite sure. I think the Children’s Centre were doing mediation but we did not hear that a lot of other people were, and there was not the accreditation and so on. (Mrs Hall: Yes.) And so quite a lot has happened in four years. We have also been told today that, because of that accreditation scheme, it is quite an 825 expensive game to get into in the first place, and people are dropping out. So that is as it were, the supply side. On the demand side, work is being done to promote demand, and funding is coming through from legal aid, so is this going to expand and at some point is it going to be a much bigger feature of Manx life. 830 Mrs Hall: I think it has got the potential to expand, we are starting to hear from people who have not seen an advocate, who have not been in through the court doors and who are saying, ‘We're separating, we think we've got the basis of an agreement between us, but we really need to sit down with someone and talk it through, and make sure we’ve not missed anything’. 835 That is really basic level, and that is where we would love people to come from because that is the starting point for anybody really is to say, ‘We've decided that we need to make the best of this situation’. If we are starting to get people in in that way I can only see that mediation will be more in demand. 840 Q111. The Clerk: Were you aware – sorry I will shut up in a minute – are you aware of any cases…? I am not quite sure that you would be, but talking about the court route into mediation, all of the complaints you sometimes hear from courts is, ‘We’d like to recommend such and such, but the service isn’t available.’ You get that with criminal disposals and things like that: it 845 would be really great if we could send them on a course but the course is not there. In this area of law do you think, if the court thinks mediation is the right thing for two parties, that the mediation is there?

Mrs Hall: I think there is access to it, we had for quite some time been attending the court 850 building when the court was in session in family law courts, so that we were available to give out information, and we are still happy to continue with that, as and when. But really it is at the wrong stage: when people are actually appearing before the Deemster or the High Bailiff they are at a point where they are so entrenched in conflict that it is very difficult to deal with them at that stage. And we do, and there have been successes, and it is not impossible, but it is really 855 hard work for everybody concerned.

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If people are encouraged to come to mediation before they get to that stage, which they are now being encouraged, then it makes the job an easier one, a less stressful one for everybody concerned, and especially the parents. And if you make it less stressful for the parents then the benefit from that is always with the children. 860 Q112. The Clerk: Are there any delays in court proceedings caused by waiting for a mediator to become available?

Mrs Hall: I do not know, not as far as I am aware of. From my point of view we certainly deal 865 with any referrals as quickly as we can, and we would usually get people into an intake meeting within, probably, a week to 10 days at the outside. So I think that is a fairly… by that stage we have sent out information to them, we have spoken to them on the telephone.

Q113. The Chairman: Just before we finish then, is there anything you think we as a 870 Committee should be particularly addressing, recommending or looking at? Anything in particular you would like to say?

Mrs Hall: I think there have been some very positive steps forward throughout, and because the courts and the Deemster in particular have been so behind mediation as an alternative form 875 of resolving family disputes, I think that there has been a groundswell towards mediation. What you are looking at is something slightly outside that, I know, because you are looking at, really, more equality between parents. To a large part that is coming through social norms and education and expectation of parents, I think. The encouragement and education of parents still needs to be ongoing. There is one course 880 that is run by Sue Smith called ‘Through the Eyes of the Child', which tries to inform parents about their children, and to give them the perspective of the child. That is really the only course that is available for parents, I do not know what parenting courses are available. One of the other difficulties is getting people there. Support from the Government: absolutely. 885 Changes in law: I am really not certain where you go with it because the law is already there and encouraging the equality, again, needs to come as much from the parents as it does… so it is going to grow. I do not know where you could change what is in place already to improve what is already happening because the law is there to support as much equality as possible. The funding issue is always going to be there: it is perhaps less of an issue with mediation for 890 the reasons that I have given, than it is for advocates. I cannot see how the suggestion that if, either mediation does not work or one person is legally aided, that neither person should have legal representation, is going to assist either the people concerned or the court. But again that is outside my area.

895 The Chairman: Okay, anything further you would like to add before we close?

Mrs Hall: Not that I can think of.

The Chairman: Okay, and I think the Committee have nothing further to add. 900 So can I thank you for coming in this morning and giving us your time and making your submission to the Committee. So, thank you once again, and the Committee will now sit in private. Thank you.

The Committee sat in private at 11.53 a.m.

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68 7th May 2014 Evidence of Mr John Knight and Mrs Jo Thomas, Isle of Man Children’s Centre

T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

S E L E C T C O M M I T T E E O N T H E C A R E A N D U P B R I N G I N G O F C H I L D R E N ( P E T I T I O N F O R R E D R E S S )

͏HANSARD

Douglas, Wednesday, 7th May 2014

PP2014/0078 CUC, No. 3

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2014

71 SELECT COMMITTEE, WEDNESDAY, 7th MAY 2014

Members Present:

Chairman: Mr J R Turner MLC Mrs K J Beecroft MHK Hon. P A Gawne MHK

Clerk: Mr J D C King

Contents Procedural...... 49 EVIDENCE OF Mrs Jo Thomas, Practice Director and Mr John Knight, Chief Executive, the Children’s Centre ...... 49 The Committee sat in private at 11.33 a.m...... 62

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Select Committee of Tynwald on the Care and Upbringing of Children (Petition for Redress)

The Committee sat in public at 10.30 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR TURNER in the Chair]

Procedural

The Chairman (Mr Turner): Good morning. Welcome to this public meeting of the Select Committee on the Care and Upbringing of Children. 5 I am Juan Turner MLC. I chair this Committee. With me are the Hon. Phil Gawne MHK and Mrs Kate Beecroft MHK, and our Clerk is Mr Jonathan King. We would like to ask that mobile phones are switched off, as this could interfere with the streaming and recording equipment for Hansard; and, for the purposes of Hansard, I will be ensuring that we do not have two people speaking at once. 10 The Committee was established by Tynwald on 10th December 2013. It was resolved, on 10th December, that a committee of three Members be appointed with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to consider and to report to Tynwald by June 2014 on the Petition for Redress of Mr Philip James Walmsley presented at St John’s on 5th July 2013 seeking a review of the law 15 relating to the care and upbringing of children, especially in cases of broken marriages and other relationships. In accordance with Standing Order 5.10(4), we have heard oral evidence from Mr Walmsley; but given the subject matter of his petition, we heard that evidence in private. On Friday, 7th March we heard public oral evidence from Mrs Pat Ingram of the Family Court 20 Welfare Service, and Miss Deborah Brayshaw from the Department of Social Care. On Monday, 31st March we heard evidence in public from Mrs Tina Hall, a mediator.

EVIDENCE OF Mrs Jo Thomas, Practice Director and Mr John Knight, Chief Executive, the Children’s Centre

Q114. The Chairman: Today we are pleased to welcome Mrs Jo Thomas and Mr John Knight from the Children’s Centre. Good morning to you both and thank you for attending this morning. First of all, if I may ask you, one at a time, to state your full name and job description within 25 the organisation you are representing this morning. First of all, Mr Knight.

Mr Knight: I am John Knight. I am the Chief Executive of the Children’s Centre.

Mrs Thomas: I am Jo Thomas. I am the Practice Director of the Children’s Centre. 30

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Q115. The Chairman: Thank you very much. Could you give us an outline, first of all, about the Children’s Centre – what it does and how it is funded – so we can get a background of the organisation?

35 Mr Knight: Certainly. The Children’s Centre is a wholly Manx charity, first established in 1868 and has been functioning at the heart of childcare, and particularly residential childcare, on the Isle of Man since that time. In its current description of the organisation, we work in three broad areas. We work in partnership with the Manx Government through the Department of Social Care, 40 delivering a raft of services. We have four small children’s homes; we have three family centres; we run the fostering and adoption services; an outreach team endeavouring to prevent children being brought into care; and, significantly for today, we run what is called a supervised Child Contact Centre in partnership with the Manx Government and Social Care. Separately, charitably, we run a raft of services. We have a community farm; we have an 45 outdoor education project; a play-work project; and again, relevant to today, we have a supported Contact Centre, which functions on a Saturday and which is distinctly different from the supervised Contact Centre. Finally, to not only deliver high-quality childcare but generate an income, we run five commercial day nurseries and after-school clubs for children with the intention to provide 50 childcare but generate income to help fund the charitable projects.

Q116. The Chairman: You mentioned briefly there part of your commercial activities, but generally how are you funded?

55 Mr Knight: The funding is spread across those three areas. The turnover of the organisation is approximately £7 million a year. About £4½ million of that is drawn through contracts with the Department of Social Care, then we would generate about £1 million from the activity of the nurseries, and the rest is fundraising and charitable activity.

60 Q117. The Chairman: Thank you very much for the background there. Moving on to Mr Walmsley’s Petition… I assume you have had the opportunity to review that Petition. Would you like to make any opening statement or remarks in connection with that Petition?

65 Mrs Thomas: I think, if I may just make a brief remark at the start, when we looked at the number of children and families who had attended the supported Saturday Contact Centre in March, there were 18 children from 11 families. The manager of the Centre would say that that is typically lower than average, but that would indicate to us that the situation in which Mr Walmsley finds himself, where he is requesting a service such as the supported Contact 70 Centre… that he is not alone in that.

The Chairman: I will just remind members of the Committee that if they have any questions, I am sure it would be more helpful to ask them as we go. Mrs Beecroft. 75 Q118. Mrs Beecroft: Thank you. Could you just clarify what is the difference between ‘supervised’ Contact Centre and ‘supported’? One is obviously in the week, presumably, and one is the weekend; but is there any difference in the service? 80 Mrs Thomas: There is yes.

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Mrs Beecroft: What is the difference?

85 Mrs Thomas: I think it is to do with the level of supervision that is needed. So, with the referrals that come from the Department of Social Care, the vast majority of those children would be in the care of the Department – often young children placed with foster carers where it has been established that there is a level of risk to the parents seeing those children, and therefore we would undertake risk assessments. Some of those contacts would always have two 90 members of our team in the room and the whole facility is risk assessed to ensure that the children have a good experience first and foremost when they are seeing their parents, but that we do it in a safe environment where, if the parents are not necessarily able to engage with the children, the staff would intervene and help to do that. The Saturday Contact Centre that we described as supported can be aligned to a service 95 where families, when there is separation and divorce, often could not find somewhere neutral to meet and to access their children; and that, I think, is something that for many years the Children’s Centre has provided on the Island. So, if you were leaving your young child with your ex-partner in that environment, you would feel that there was a level of support and safety. Often that is only an interim arrangement and quite often, once people have got the 100 confidence and the relationship has settled down, that then moves on – we have facilitated contact at a quite stressful period, and then families crack on with it and meet up in the park or go away together, or whatever they then choose to do. There is something in the middle, when the supported Contact Centre would say that they have to intervene at a higher level to ensure that the child’s needs are met. We are very 105 fortunate at the Children’s Centre in that the staffing of the two centres is done by the same team. The staff, who are very highly trained and professional and have been doing this area of work for many years, work under the DSC contract during the week and the same manager… we give her additional hours to take responsibility to run the Saturday centre. So the accreditation of the Centre, which is through the National Association of Contact 110 Centres, which is an English-based organisation… we have had enhanced accreditation with them for a number of years now, and that covers both centres. I think one of our very high level of strengths really is the fact that we can draw on the expertise of the staff team for both services.

115 Q119. Mrs Beecroft: So if I could just clarify: the children who would be attending the supported service on a Saturday would not necessarily be classed as at risk –

Mrs Thomas: Not at all –

120 Mrs Beecroft: – but if there was a problem, then the staff are adequately trained to cope with it if something happens or it developed further?

Mrs Thomas: Yes, that is certainly the case. I would like to add that the vast majority of children coming on the Saturday Contact Centre 125 have not had an assessment that indicated any level of risk.

Mrs Beecroft: Yes.

The Chairman: Mr Gawne. 130 Q120. Mr Gawne: Yes, just on a much broader question, I suppose… I will let you know what the questions are, and then I will say nice things about the Children’s Centre while you have time to think about it.

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Just in relation to care and upbringing of children, does the current system work? How could 135 it be improved? Is it just about money? Are you operating the perfect system as we speak, or could it be better? One of the things that I personally find very attractive about the Children’s Centre is the ambition of the organisation. You do not appear to be, as an organisation, cowed by the fact that there is not enough money or you have not got political support, or whatever it might be, 140 for particular projects. If you think that is the right way to go about it, you do tend to get driven in the direction of the right thing. This is your opportunity, I suppose, to tell us what more should be being done, if anything, to improve the situation.

145 Mr Knight: Perhaps if I could just start off on answering that – and thank you for the nice comments. I guess, as proceedings continue, you will gauge that my view is perhaps the organisation- wide view, as opposed to Jo’s which is very practice and social work professionally driven and informed. 150 My observation, which matches to the nice comment you have made about the Children’s Centre, is actually the supported Contact Centre survives, as it should, on the back of the Children’s Centre being a proactive fundraising organisation. That is not a complaint; I think that is the reality of running charitable projects. We are consistently responsive to ensuring the service is there, even when referrals are 155 made, perhaps with very little consultation, to the Saturday Contact Centre. It is not unusual for the manager to receive a call or an e-mail on Thursday or Friday saying contact has been recommended and will take place this Saturday at 10 o’clock in the morning. I think the flexibility and the responsiveness of the charity has enabled that to occur, genuinely driven by… our first thought would be what is best for the child. So we would have a staff team that would go out of 160 their way to make the space available and to make other staff available to have that. The funding of the supported Contact Centre has always been quite challenging to come by. We have lobbied local firms of advocates to contribute, because they quite often refer to the supported Centre. We have looked at corporate relationships to sponsor the Centre. Generally, it is not an attractive charitable proposition, as opposed to say a community farm, but since the 165 mid-1990s it has been really deeply rooted within the raison d’être of the Children’s Centre, so we ensure funds are there from more general fundraising activities.

Q121. The Chairman: When Mrs Thomas was talking about the difference between ‘supported’ and ‘supervised’, you mentioned about the supported sessions maybe being suitable 170 for parents who have separated or divorced, and then the contact with the children for one of the parties is obviously through the Centre. Why would that be? Obviously, if a couple has been living together and the child has been in the home, and then they have gone their separate ways… How do the children adapt to suddenly only seeing the other parent in a strange place? What are the circumstances generally that lead that contact to being only at the supported 175 session?

Mrs Thomas: I think that happens in the early stages of a relationship breaking down. More frequently, we are getting referrals from families where one member may live here – the mother or father may live here – and the other parent may live in England. So I think we are 180 literally a resource that is very child-centred, is a nice surrounding… invite people in to come and have a look round and feel familiar with the environment, and so they can come to the Centre to see their children as the next step that everybody feels confident with. You may not want your child to visit your ex-husband in a flat along the prom, for whatever reason – it might not be child friendly and it may be nicer, and less stressful for everybody 185 involved at that point, for it to be on neutral ground.

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Often, family members will offer houses – you go to grandparents, or whatever – but a lot of families on the Island do not have those extended family members here to draw upon. Certainly when we facilitate contact – and we have done that very recently – for a family where one parent is on the Island and one parent and grandparents are in England, the people visiting the 190 Island are absolutely delighted at the opportunity to continue their relationship with their grandchildren.

Mr Knight: Could I just add as well that it is not always that the child stays within the supported Contact Centre for the duration of the contact. It may be that one parent drops off 195 and 20 minutes later the other parent arrives and they go out for the day, but it is a neutral venue for the child to be looked after in that 20-minute period. The other, I think quite innovative, thing that Jo and Moira Osborne have led recently with the team – which is more the supervised, not the supported Contact Centre – is the introduction of Skype contact, where through a big-screen TV and modern technology contact is happening. 200 Mrs Thomas: Yes, and that is working well.

The Chairman: Excellent. As you say, that sounds like a very feasible option of using technology to maintain contact with relatives who may not be on the Island. 205 Mrs Beecroft.

Q122. Mrs Beecroft: How would, say, grandparents in the UK actually find out about your supervised weekend service, so that they get to see their grandchildren when they come over?

210 Mrs Thomas: If they were to contact a similar organisation in England, they would. Because we are part of the national organisation, they would put them in contact with us. A lot of the advocates would advise parents. As soon as they start divorce proceedings, they would advise them to contact us – often prior to the advocate making a referral themselves. I think last year we had contact from 28 of the advocates on the Island. 215 Q123. Mr Gawne: Just in relation to the Skype, is that just for off-Island contact? I am aware – and it is a terrible thing to admit – I have used FaceTime to talk to my daughter, who is in the house at the same time. I found it easier than to… (Laughter) I just wonder whether there are opportunities as well for Skype, if there are issues where 220 parents… or the court is concerned about parents being in the same room as the child – whether you can use Skype in that way as well?

Mrs Thomas: It is a relatively recent introduction. We have written some guidelines so that all parties would know what is expected of them. Some of the families in England who have no 225 access to the technology are using the local contact centre there, so that is working well. The team and Moira Osborne, the team manager, have developed their connections with the Prison on the Island and they run a number of fun days for children and their families when one of the parents is in prison. Certainly Moira has talked to me, and I think she is talking to the governor, about using Skype with some of the prisoners. That has not had happened yet, but I 230 would hope that it will in the not-too-distant future.

Q124. Mr Gawne: In terms of innovation, is this new to the Isle of Man, or just new? Is it happening elsewhere in the British Isles?

235 Mrs Thomas: We were the first to write the guidance, because we – as you always do – actually contacted the National Association and asked for guidance; and there was not any, so we had to write it. It was about six months ago we did that.

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Mr Gawne: Thanks.

240 Q125. The Chairman: Excellent. If we can come on to some of the other topics that were raised in the petition of Mr Walmsley: mediation and compulsory mediation is one of the things that Mr Walmsley has suggested. What is your view?

245 Mr Knight: Well, from a slightly removed view from practice, the problem for me there is I think mediation is the right direction to go in. It is the reference to compulsory mediation that flags up the big question for me. For many of the individuals that the Children’s Centre comes into contact with, even the suggestion that you will be compulsorily demanded to be involved in something is perhaps the trigger that says, ‘Well, actually, you cannot make me do that; I am not 250 going to be…’ Whether the way forward can embrace a softer approach, I am not sure; however, I think our belief in lots of areas that we operate in is the earlier the intervention the better. Rather than waiting until something has to be forced upon somebody as compulsory mediation, we would rather see a couple being involved in mediation when they are both open-minded that 255 something is going wrong in the relationship and the child is suffering, and it being about the best outcome for the child. I am sorry, it probably does not clearly answer your question, but I think mediation, yes; compulsory, I am not sure.

260 Q126. The Chairman: We have heard evidence that once you have managed to get the parties together, mediation has worked for even couples who were most likely not to have succeeded, so we have heard evidence that it is very capable of working. We have also heard suggestions that maybe the mediation should not be compulsory, but you cannot access courts. You are almost saying, ‘Well, we are not going to force you to go to 265 mediation, but if you do not try that, then I am sorry but we will not entertain you in court.’ Do you have a view on that suggestion?

Mrs Thomas: I think that would be the most sensible way forward, in that the child is then at the centre of the matter. It is all too easy to get embroiled in the adult needs in this sort of 270 situation. I think mediation plays a key role in that and when documents are prepared for the courts, obviously the child’s welfare is paramount, and that is always something that is looked at. In our thinking you would draw that principle back into early intervention, and I think that we would have evidence that the practice of the supported Contact Centre in trying to facilitate the 275 best interests of the child in seeing both parents may, in many cases, prevent the need for formal mediation; because, at the lowest level, to sort something out in the child’s interest is usually what most parents want. I think mediation is required in situations where that has not succeeded, but I would not want to say that, as a Centre, we are wanting to support mediation without some basic practice 280 actually being investigated further. I think we would welcome the opportunity to look at things like conflict resolution in relationships prior to courts becoming involved.

Q127. The Chairman: Well, that brings us on actually to the next question I was going to ask, 285 where in your submission the Children’s Centre stated it would be entirely feasible for mediation along with relationship counselling to be provided within the Contact Centre in order to ensure a child-centred approach. Obviously, there are no doubt two parts to this, aren’t there? There is the breakdown of the relationship, which has its own acrimonious scenarios going on; and then there is the future of

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290 the child. Whilst the rows between the warring parties are happening, that in itself is something that, although very much linked… surely there is merit in having that relationship counselling. So if that was the route to go down, how would you envisage that being funded – the relationship counselling in addition to the mediation?

295 Mr Knight: Well, our experience some years ago… and you have referred to counselling; I refer back to mediation. Probably three years ago we had established and trained a mediator within the organisation and endeavoured to set up a mediation service. Raising charitable funds, or attracting charitable funds for that was wholly unsuccessful. Our hope at the time was that a contract would be placed out to tender by Government and 300 we would be one of, I am sure, a number of organisations who would then bid for that. A different route has been chosen, and so be it, but our experience of raising funds for mediation was really problematic, so in terms of the direct question of who would pay for it, I do think it has to be a statutorily funded service. To ensure sustainability and the certainty that service will be there, I think under purely 305 charitable aims would be risky.

The Clerk: May I come in with a question, Mr Chairman?

The Chairman: Yes, certainly, Mr King. 310 Q128. The Clerk: I think from what – is it Mrs Thomas by the way, or Miss? (Mrs Thomas: Yes, Mrs.) – Mrs Thomas said a minute ago, you were talking about mediation being, as it were, almost too formal and you would like to have a less formal system at an earlier stage to resolve disputes at the lowest and most informal possible level. Is that a fair understanding? 315 Mrs Thomas: I think so, yes. That is correct, yes.

Q129. The Clerk: So when we talk about funding a mediation service, is that in fact ‘bigging it up’ too much and making it sound more expensive than it needs to be? 320 Mr Knight: Well, I guess at that stage it has become formal. It has become, ‘We are asking you to do this before it can go to the next stage.’ Perhaps some of the stuff… and again you would expect us to be professional in not talking about particular cases that we are involved in, but we do have, I think, almost daily experience 325 of the Children’s Centre talking to parents and persuading and encouraging a better dialogue before it moves into a formal context. I am guessing, and I do not want to put words in Jo’s mouth, but that is probably what she is referring to – that some conversations in a meeting over coffee can go a long way to stopping things becoming more problematic.

330 Mrs Thomas: To add to that, the evidence that we have in the Contact Centre is that when families are perhaps a bit reluctant to come, and we encourage them to come and look round before the children come, in those conversations… I would say that is the point at which the relationship counselling starts, and if you can get in there and resolve matters to everybody’s satisfaction… People might not be over the moon about some of the outcomes – it might not be 335 their preferred choice – but most parents, as I say, would be satisfied. If they saw it was in the child’s interests and they can maintain that significant relationship with their child for the rest of their childhood and into adult life, then… I think that we have got a proven track record of being very successful at that stage, and therefore to just concentrate on the mediation may be something that we will only need for say 10% of the families that are going through this process. 340 We could resolve matters at an earlier stage and then when the courts were involved in the divorce proceedings, the matters that concern the Deemster in respect of the welfare of the

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children are already sorted. They would not have to then involve Court Welfare and Probation Service to the level that they do now.

345 Q130. The Clerk: So you do what you can with the people you have got on the ground, and you do a lot with that. But there are some cases where they might benefit from a mediator, (Mrs Thomas: Yes.) and you would like to have a room in the corner which says, ‘You need to go to the mediator’, one in ten – and there is not such a person at the moment in your organisation? 350 Mr Knight: Not doing mediation, no. The system on Island now is there is a mediation council or association, and it is a panel of people. The individuals would choose from a selection of people and then agree the fee, and mediation begins. To cut to the chase, our belief is that would be better held in an organisation that was child- 355 focused and there for the betterment of the community, not what might be seen as a commercial enterprise.

Q131. The Chairman: The Children’s Centre says in its submission that every effort should be made to resolve issues without the involvement of the Family Court – and this links into what we 360 are discussing at the moment – and then refers to the delegation of such authority. Could you just explain what you mean by the delegation of authority? To whom should authority be delegated, and how?

Mrs Thomas: I think it is building on what we have already talked through. 365 At the moment, I think that the authority rests within the courts, and quite rightly so, but inevitably that is a lengthy period of time in the child’s life where a very important matter for that child remains unresolved. They may not know when they are next going to see a parent or other extended members of the family, so everything we could possibly do to make that a shorter period of time we think is in the interest of the child. 370 The delegated authority could be vested in the manager or managers of the Contact Centre, and by that their views and reports would be given a value by the courts. So families would know that the status of a court report produced by a Family Court welfare officer later in the proceedings, as it stands at the moment, could be brought forward to an earlier point of intervention. So that delegated authority rests with somebody who is trying to resolve the issues 375 and then present their findings in an open and transparent way, so that all people involved would know what her evidence was based on. That would be something that we are very familiar with doing in the supervised Contact Centre. If we were, and we frequently are, in care proceedings with the family courts, and the supervised Contact Centre are asked to give evidence, then we produce reports – evidence 380 based on the relationships and the parenting skills we have observed. The skills are there to draw upon that at an earlier stage when it is a family that has no involvement with the Department of Social Care but is looking for support to resolve the issues that a divorce has led to.

385 Q132. The Chairman: Thank you very much. The next subject really, is shared residence. Mr Walmsley, in his Petition, favours shared residence orders. He acknowledges that time might not mean 50-50 in terms of time, but thinks there should be equal input and promotion in the child’s life. Do you think this happens at the moment? 390 Mr Knight: It would appear from the evidence, and taking the evidence of Mr Walmsley’s Petition as true and accurate, that that is not the case. So, difficult, certainly for me to comment

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across the board of the experience of the Island, but there would seem to be evidence that is not happening on every occasion. 395 Q133. The Chairman: The law, we were discussing in Committee, is quite open-ended, really. Is there anything you think we should be looking at that could maybe address this apparent imbalance? I think, with parental responsibility, it gives all persons with parental responsibility an equal 400 input into the upbringing and welfare of the child. But, of course, that is not always apparent. Is there anything you think in particular we should be looking at that needs addressing?

Mrs Thomas: I think it is quite a complex area and I was talking it over earlier in the week with the manager of the Centre, and she raised issues such as education and health, particularly 405 if a child has additional needs. So, it is not purely whether it is a 50-50 split in residency. If one parent is even at the north of the Island and the other is at the south, how do you maintain a consistent level of education? I think there has to be some thought given to that. Certainly we have had children with additional needs who may need equipment in the family home – so how do you care for those children in a 50-50 situation? 410 I think that, going back to our previous question in respect of the delegated authority, almost in having those discussions with family members one should resolve to everybody’s satisfaction the 50-50 split, or the 60-40 split, in the child’s best interests.

Q134. The Chairman: I think Mr Walmsley was effectively saying 50-50 in terms of input, as 415 opposed to time, so there would be the opportunity for the parents of the child to be equal in terms of discussing the future. No one parent should be… ‘Well, I hear what you say but I am going to decide,’ type of thing. It should be equal, that they are both committed the same to the upbringing of the child. That is what Mr Walmsley was saying, but I appreciate that every case is different. As you say, where 420 there are special needs, then clearly there is an imbalance because of practicalities. Obviously, we are looking at reviewing the law as it stands and seeing whether anything needs to be changed. Is there anything from that that you think we should be looking at and considering, in your experience of dealing with these cases?

425 Mr Knight: Sorry, maybe while Jo is thinking… It is very difficult, isn’t it, and I am sure that is why we are all here, because where responsibility is being evenly split within a relationship that has already got its issues and problems, I guess every decision and every avenue that one individual would like to take, the other one will find fault in or question. I appreciate I am probably stating what you would know. Whether the law can overcome that is a real challenge. I 430 would struggle to add anything I think of value.

The Chairman: I think this is the situation that we are in, and indeed other parties who have given evidence. The law is quite open and basically gives discretion to the courts to have a whole wide range of options so it can no doubt deal with these things. 435 It was really to see whether you had any view, and your view is similar to some of the avenues we have already been down. Mrs Beecroft.

Q135. Mrs Beecroft: Yes, just going back to what you said before, I think you said something 440 about parenting skills, or it was some phrase similar to that, that you judged the two on and decisions were made. I am just wondering, and thinking of the scenarios maybe where the woman has stayed at home or had the majority of the time caring for that child, and then there is a split up. Obviously that woman is going to be seen to have better parenting skills than the father, who has not had

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445 that experience because he has been going out to work. She has maybe stayed at home – and I am just using this as an example – say for the first couple of years or whatever. But it does not mean that he is not capable of having equally good parenting skills if he was given that opportunity. So how do you judge and say who would be the better one in those circumstances where you are judging parenting skills? He has not had the chance to prove that he could have. 450 Mrs Thomas: I would hope that we actually enable that process to happen so that in the contact sessions the team would encourage and teach and support, in the situation you are describing, the father to be able to develop their skills and have a duty to do that. So before you… [Inaudible] evidence as to whether somebody could do that, you have to give 455 them every opportunity to learn to do that. Then, if they are not able to or not motivated to do so, that is a very different matter. (Mrs Beecroft: Yes.) That was, I think, what I was trying to describe. Within the Contact Centre, the staff would facilitate and say, ‘Well, we know little Johnny loves playing with the Lego or the Duplo – let’s get that out,’ and we would encourage Dad to do that, rather than just sitting back and letting 460 somebody flounder in that situation, if that were the case. They are specifically trained to do that. And it is really hard, actually, not to intervene too much. Certainly when I have been in sessions, you would want to get down and play with the child – and actually your role is to help the parent do that, to facilitate that. I think we have also linked it to the Family Centre, which is based in the same building in 465 Derby Square. The Family Centre runs many parenting courses for all ages of children, and so the Contact Centre would talk to parents about that and say to them that those could be made available to them if they so wished.

Q136. The Chairman: Talking about parenting skills, there is a difference, isn’t there, 470 between parenting skills and parenting style? (Mrs Thomas: Yes.) Because we all, as parents, have our own style – my style is different from my partner’s style – but it could be said that they are both good in their own way, but quite different. How do you differentiate between… When you get two parents who have separated, one party may not like the parenting style of the other, albeit the skill might be there but the style 475 might be the point of contention between the two: how do you get over that hurdle?

Mrs Thomas: I think that is through the skill of the staff and the observations that they make, and then the evidence that they use to support their views. It might be that those two styles complement each other really well for the child, and the child knows that they will get away with 480 certain things with one parent and not the other –

Q137. The Chairman: Yes, because they could be quite opposite, couldn’t they?

Mrs Thomas: And that can be very healthy for a child. I think the spirit in which it is intended 485 is the most important thing, and the openness to talk through the impact of those different styles on the child. I think as long as the child was flourishing within that, we would give evidence to say that we were supporting that. If it was having an impact on the child, then similarly we would want to talk to parents about it and discuss that.

490 Mr Knight: I see and hear regularly the phrases or the reference to appropriateness and consistency, so clearly is a parent or are parents acting appropriately – and if their style is slightly different, at least is it a consistent style that is appropriate, as opposed to clearly inappropriate. I guess a lot of the parenting capability assessments and parenting programmes and so on would be looking at does the parent get onto the floor and play with the child, are they acting 495 appropriately in terms of discipline and is it proportionate, and so on and so forth.

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Q138. The Chairman: So that, in effect, is a form of this relationship counselling (Mrs Thomas: Yes, it is.) that we referred to earlier, isn’t it? Yes. We also spoke about the decisions, and we mentioned about the 50-50 split. But, of course, 500 Mr Walmsley is talking then about Deemsters making decisions – this is obviously where the two parties just cannot agree and it ends up, unfortunately, in the court. He talks about Deemsters making decisions about schooling where parents cannot agree. Now, it is obviously quite a contentious issue but also the Department of Education will have a role to play in terms of catchment areas as well. 505 Is this happening at the moment? Are you aware where courts have made decisions, and after those decisions are you aware whether it is working or whether there are any problems arising from the courts actually making decisions? Is it helpful or is it actually unhelpful to the process?

510 Mrs Thomas: I am not aware of any, once the court has made the decision, that are causing any difficulties. Certainly when the courts are in that situation they would appoint a court welfare officer from the Probation Service, as I am sure you are aware. It is then standard practice that that officer of the court will come and visit the Contact Centre. They would observe the contacts, 515 they would talk to the team, they obviously talk to the parents and, importantly, to the child. So I think we are satisfied that when situations get into that arena the professionals involved work very closely with us, and then that is the report that the Deemster uses to make their judgment.

520 Q139. The Chairman: Do the court welfare officers give full credence to the reports that your staff are giving them?

Mrs Thomas: I have always witnessed very healthy professional relationships between the two services, yes. 525 Q140. The Chairman: Okay. A couple of final observations from Mr Walmsley’s Petition then. He favours the levelling down: if one party cannot afford an advocate then neither should be represented. Do you have any comments on this idea of levelling down?

530 Mr Knight: My reaction when reading that and reviewing all the different papers was that, actually, that seemed fair and appropriate – that an equal position for both parties would seem to be appropriate.

Q141. The Chairman: I think, reading from… and the evidence from Mr Walmsley is that if 535 one party is on legal aid and effectively has a… well, not an open cheque book, but effectively they are being funded and the other part is struggling, it puts them at a disadvantage. I think that is what he was referring to. But you would support, then, that both parties should be equally… neither should be disadvantaged?

540 Mr Knight: Yes, I think so.

Q142. Mr Gawne: Just on that then, because we have also had written evidence from an advocate – and, not unsurprisingly, the advocate suggested that would be a terrible thing to do without advocates. The reasoning is that in some relationships some of the problems are often 545 caused by one party dominating or domineering the other partner. So, again, in your experience does that – and I am fairly sure I know what the answer is going to be here, but the system, your officers, the officers of the court, the judge, whoever that may be, would they have the

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experience to be able to spot when one partner is trying to bully or browbeat the other partner, even if it was quite subtle the way that was being done? 550 Again, the advocate has suggested that you really do need the advocates there to take the two protagonists – which, unfortunately, is the case by the time they get to court – to actually take them through the process. But, in your experience do you think that is the case, or can we do without?

555 Mrs Thomas: I think there have been situations where that is necessary. I think that Mr Walmsley is quite correct when he is saying when one party has legal representation and the other is not able to fund it, that does cause an inequality which may exacerbate the situation.

Q143. Mr Gawne: Yes, but is that spotted? The judge should be fairly good at judging things – 560 the clue is in the title, isn’t it – but is that something the judge can compensate for, or, inevitably because you have got an advocate who is professional at putting forward his case, the judge is going to be swayed by the advocate?

Mrs Thomas: I do not think there is any evidence that the judge would be swayed by that, 565 and as you say I would have such respect that I do not think that would happen. I think it is in the perception of the parent who is not legally represented (Mr Gawne: Right.) that they then become quite frustrated at the imbalance, and their frustration does not then help resolve the entire situation – it increases the acrimony almost.

570 Q144. Mr Gawne: More perception than the reality?

Mrs Thomas: Yes.

Q145. The Chairman: Would you feel that it is almost suitable for the advocates to be there 575 for the procedural side of operating in the court, rather than the evidence of the two parties? I do not think there is a system where you would have advocates just to deal with the procedures, and then when it comes to the subject matter then the parties are there. That was one of the frustrations Mr Walmsley had: if you are representing yourself you do not know all the rules of court and what you ask for at which moment, and if you are wanting evidence 580 served you have got to ask for it in a certain way. That is where the judiciary were quite frustrated, because when parties represent themselves, they were not frustrated about the subject matter of the dispute; it was more the procedures are completely drawn out, and that is what goes against the whole ethos of saying children matters need to be dealt with swiftly. 585 So there is a real problem here: whereas we need advocates to operate the system, but then when it comes to the dispute it is almost like we would like them to almost stand back and let the parties be equal – which of course is the ideal world, but in reality is does not work like that. So I do not know whether you have a comment on that type of scenario?

590 Mr Knight: I am not sure it is a direct response to the question but, again, it is interesting that the… and through our membership and association with the National Association of Child Contact Centres in the UK, from 22nd April there are new laws being now introduced around family courts and the speed at which they have to operate, and their ability to I think meet and function in all counties and areas. And actually, similarly, going back a few steps in the 595 conversation, the subject of compulsory family mediation is being brought in as well. So, yes, I guess everybody is very aware of the damage that time delays and the adversarial court system can ultimately impact upon the relationships, and the child in particular.

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Q146. The Chairman: And it is also lost time that parents will never get back, because as the 600 child grows up you cannot have that time again. So time is a very important factor. I think it is worth highlighting on the record that, although it seems ideal to remove advocates from the process, by doing so it can actually delay the process because of the court procedures. So the aim surely then would be to try and channel people into the mediation and agreement route, and away from the court route. 605 Mr Knight: Yes.

The Chairman: Any further questions before we finish this session?

610 Q147. Mrs Beecroft: It is really a very brief one. So, you would be supportive of anything that could streamline and simplify the court process, if it had to get to that stage, that would then speed matters up and possibly make it clearer to the individuals concerned, actually what they needed to do and when?

615 Mrs Thomas: Yes.

Mrs Beecroft: Yes, okay.

The Chairman: Mr King, any further questions? 620 Q148. The Clerk: Just at the bottom of the page here we have reminded you that Mr Walmsley says the Contact Centre should be able to make decisions, and I think this goes back to the discussion about delegated authority. But could we ask you to say again what your ideal is for the role of the Contact Centre? 625 I think I took from what you said before that you would like to be able to provide evidence to the Family Court at an earlier stage, rather than wait for the Family Court to come and send its own officer to write a report?

Mrs Thomas: That is correct, yes. 630 Q149. The Clerk: And how would we get from here to there? If that is where you want to be, what can a Select Committee do to help?

Mrs Thomas: I guess that is within the court procedures, that as long as the family courts 635 were happy and gave that report a status, as long as all parties were aware and agreeable at the very start of their involvement with the Contact Centre that that is the purpose of any reports that were written and that they would have that status, then that would be something that could be easily achieved.

640 Q150. The Clerk: Do you think that there is any risk that operating that way would make families less likely to use the Contact Centre in the first place? Because they would feel that here is another body that is going to be scrutinising me and reporting on me?

Mr Knight: I think there is that risk. 645 Mrs Thomas: There is that risk, yes, but I think that is down to professionalism and the written communication and the information we share with parents. They would then be encouraged to see that as a way forward, to resolve the matters that they were not able to do as a family themselves without outside intervention. 650

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Mr Knight: If what is coming forward is a frustration in the delays and so on, yes, I guess a positive move to making the process more fluid and swift and so forth would hopefully be acceptable. Albeit it is not perfect, it is perhaps better than the current system.

655 Q151. The Clerk: You would prefer to put your head above the parapet in the interests of getting things resolved more quickly?

Mr Knight: Yes.

660 Q152: And have you had this conversation with the Family Court Welfare Service?

Mr Knight: Have we?

The Clerk: Yes. 665 Mr Knight: No.

The Chairman: Well, thank you very much for coming in this morning; it has been very helpful. 670 If there is anything after the session that you feel you have missed, feel free to drop the Committee a line, and put pen to paper if there is anything you find that we have not covered this morning – we would like to hear from you. This concludes our session here this morning, so the Committee will now sit in private. Thank you. 675 The Committee sat in private at 11.33 a.m.

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7th May 2014 Evidence of Mrs Judy Arnold, Cruse Bereavement Care

T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

S E L E C T C O M M I T T E E O N T H E C A R E A N D U P B R I N G I N G O F C H I L D R E N ( P E T I T I O N F O R R E D R E S S )

PRIVATE TRANSCRIPT

Douglas, Wednesday, 7th May 2014

CUC-PRIVATE, No. 2

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2014

89 SELECT COMMITTEE, WEDNESDAY, 7th MAY 2014

Members Present:

Chairman: Mr J R Turner MLC Mrs K J Beecroft MHK Hon. P A Gawne MHK

Clerk: Mr J D C King

Contents Procedural...... 23 EVIDENCE OF Mrs J Arnold ...... 23 The Committee adjourned at 12.16 p.m...... 32

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Select Committee of Tynwald on the Care and Upbringing of Children (Petition for Redress)

The Committee sat in private at 11.37 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR TURNER in the Chair]

Procedural

The Chairman (Mr Turner): Good morning. Continuing our evidence session this morning, this is the Select Committee on the Care and Upbringing of Children. I am Juan Turner MLC, and I chair the Committee. With me is the Hon. Phil Gawne MHK, Mrs Kate Beecroft MHK, and our Clerk, Mr Jonathan King.

EVIDENCE OF Mrs J Arnold

5 Q75. The Chairman: With us this morning is Mrs Judy Arnold. First of all, Mrs Arnold, could just explain who you are here representing and your position today?

Mrs Arnold: Right. Thank you. 10 My position, really, is representing the voice of the child. I am a volunteer for Cruse Bereavement Care and on a couple of occasions, and in fact on more than a couple of occasions we have had requests for support for children who are distressed and showing signs of unusual behaviour at school or whatever, as a result of divorce and separation. It was the idea of the loss that prompted the referrals to come to Cruse. Fortunately, I 15 completed training in caring for the bereaved child in 1995 – that was something I did with Barnardo’s and Cruse Northern Ireland. So I have had over the years quite a bit of experience of working with children and supporting children.

Q76. The Chairman: You mentioned that you received requests for support. (Mrs Arnold: 20 Yes.) Where do those requests come from?

Mrs Arnold: One came from a school and others had come from family members, who were, themselves, not knowing what to do. Children showed real signs of distress and so it is quite a difficult situation for them. 25 Q77. The Chairman: It has been said before that the breakdown of a relationship can have the same impact as a bereavement. What sort of signs do the children show? How does it affect them?

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30 Mrs Arnold: Yes, it can be worse than that, to be quite honest. With bereavement, technically it is straight forward, as somebody dies and that is it. With this sort of loss, what has come across to me from the children themselves is, ‘why don’t they love me anymore?’ So they have lost that love and feeling of protection, and that has resulted in temper tantrums, not sleeping, a very poor relationship with the caring parent, and also lack of 35 concentration in school and it is generally quite dysfunctional behaviour, or can be.

Q78. Mrs Beecroft: Could I just ask where the cases that you have been asked to have a look at and help with, have they been cases where the child just only sees one of the parents and the other one is completely out of the frame, or is it a mixture, or is it mainly that one? 40 Mrs Arnold: Yes, fortunately I have had a mixture of a few scenarios and the worst case really is when there is alienation between the partners… you know, a husband and wife or even live-in partners as these days things are quite different – and that causes great distress. ‘I love my daddy, but mummy won’t talk about him’, you know. I find with children as young as six, seven 45 and eight, they become quite mature in their understanding and they have listened to the build- up to separation, through perhaps argument or whatever, and they are very, very aware.

Q79. Mrs Beecroft: In cases where the child is still seeing both partners or both parents, whatever, why is there that feeling of loss if they still seeing both of them? Is it the attitude of 50 the two? What is it?

Mrs Arnold: It can be the attitude of the parent. A child’s sanctuary is its bedroom. That is where it comes home from school and everything gets off. Sits down, and that is where they are safe and happy. But when you have got that split 55 between two units… I had one child who loved to go and stay with daddy for the weekend, but had to sleep on the settee. They had lost their identity of who they were within the family structure and that itself causes distress.

Q80. Mrs Beecroft: So it is their loss of identity or the loss of the parent? Which – 60 Mrs Arnold: It is both. You know, ‘where do I fit now in this scenario and who will listen to me?’ worries me greatly, because I feel that… I have read the paper with great interest and understand that the parents will have a voice; but the children need a voice too. They need to be listened to and for us to respect their wishes. How we do that, I don’t know. I really don’t know, 65 unless there is something in place.

Q81. The Chairman: It is quite interesting really, because in these court proceedings, of course, the mother is represented and the father is represented. We almost need, maybe, a third representative – 70 Mrs Arnold: We do. Absolutely.

The Chairman: – for the child.

75 Mrs Arnold: Yes, I have thought about this part of it quite in-depth and it would take probably a couple of weeks to get to know the child, as we would do in any normal counselling and supporting sessions, but it could be done. Have everything explained to them independently as to what happens and what it is all about and give them the opportunity to voice their feelings.

80 Q82. The Chairman: We have heard allegations of one parent almost brainwashing the children and sadly we read about these cases in the papers as well, and it is not just here, it is

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across the water. Are you able to draw out through your experience and training… when the child says something are you able to actually say that is the father or the mother talking, and that is not really… you can draw that out? 85 Mrs Arnold: Yes, you can hear exactly where it is all coming from and analyse it. Once you have got the trust of a child, which is so important, and have a good friendly rapport, you can address quite a few issues and help them to understand what is going on. I think that for me is most important, that they have somebody that they can turn to. 90 Q83. The Chairman: Is that when the real story comes out from the child as opposed to the regurgitated…?

Mrs Arnold: Yes, and also they will hear things that perhaps won’t be said. They do listen at 95 doors and even though a child is tucked up in bed, they do know what is going on.

Q84. Mr Gawne: I see what you have just described in your opening remarks really explains why we are here and why we are having such difficulty, I suppose, in trying to work out what the way forward is, because what you have described are very complex and difficult relationships, 100 human relationships, and then the blunt instrument of the court system trying to provide solutions, which is not necessarily as easy as it might appear.

Mrs Arnold: It is the length of time as well that is a problem with these issues, definitely.

105 Q85. Mr Gawne: Actually, we were talking there about the possibility of a third representation for the child, is it not possible actually that rather than going that way, you actually look for just one advocate representing the interests of the child and actually stopping having the kind of polarising effect (Mrs Arnold: Yes.) that you would get in the court system? Is that something that could work? 110 Mrs Arnold: I think that would be quite a good way forward actually, as long as they are cared for and respected and their views listened to, without a lot of intervention from others. A one-to-one, really, for a child is all that they can manage.

115 Q86. Mr Gawne: I suppose inevitably… well, perhaps not in all situations, but in some situations if we did move to a situation like that, would it not be that each parent would then be having to try and influence the child to get the outcome that they wanted through the advocate?

120 Mrs Arnold: Yes, but I think with careful support for that child from an independent person, you know which way you are going.

Mr Gawne: Yes, okay. Thanks.

125 Q87. The Chairman: From what you have told us, I get the impression that we are talking about children who obviously have a voice and are old enough to understand to a level what is going on. Half the problem we are dealing with in the Committee is when parents separate when the children are very young, and obviously haven't got a full understanding, but each of the parents, or usually it is the parent who has been denied access, is losing time with that child. 130 So, of course, it may be that if it comes to the point where the father, or indeed the mother if it is the other way around, is completely alien to the child; therefore there isn’t that bond.

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One of the things we have been discussing is the importance of the time that is taken to bring these cases through the court system. Do you have any experience of that and any comments to make? 135 Mrs Arnold: Yes, I am very fortunate in working with children right from little tiny ones. Four- year-olds are… that is the crucial age in any child. That is when they suddenly realise what the world is all about and what they are all about, and it can be the most impressionable age for their future. I notice that in this particular issue here the child is four, and I thought, ouch, 140 because that is when they need guidance and support, careful support actually in coping with this issue. This child, in particular, would be hearing all sorts of stories and if they are not helped to understand those stories, then it can lead on in later years to greater disruption within the family… within themselves. The work that we do with Cruse when we are working with bereaved children, as they get 145 older their expectations and their understandings change, but we are still there for them for those changes. We will step back in again and come and help to take them on to their next stage of whatever it is, and I think children as a result of separation and divorce will have exactly the same questions. The child that knows only one parent, but knows that there is another one around will want to know about it at some times in their lives, and that is where they need 150 somewhere to go for guidance on how they cope with that, because if they don’t, they make up their own stories and that is when is becomes quite out of control. So I think once a child is in a system, that that system is monitored and that they can actually come back, time again, when it is needed.

155 Q88. The Chairman: When they make their own stories up, do they start believing, (Mrs Arnold: Oh, Yes.) really believing these? That surely must be quite damaging.

Mrs Arnold: It can be if it is not attended to. Yes, it can be. It is part of their release. It is part of getting their emotions out. They don’t know what to say, so I will say this. Then, as you say, 160 yes, they start believing it. Nightmares are an issue – dreaming in bedrooms. So there is an awful lot going on for a child that is in the middle of this… the stress.

The Chairman: You have – 165 Q89. Mrs Beecroft: Yes, just one. So on the other side of the coin for the older children, who do understand, they can obviously at times be swayed by whichever parent decides to overcompensate and buy them the latest trainers or whatever it is and spoil them – 170 Mrs Arnold: Buying the child.

Mrs Beecroft: To buy the child something to buy their affection, whereas the other one is possibly trying to be more a normal parent with normal boundaries and guidelines and is quite 175 strict. If it is just the child that is listened to and their wishes, then human nature being what it is they are probably going to say they want to go to the parent who is going to give them what they want. How do you –

Mrs Arnold: Balance that out. 180 Mrs Beecroft: Yes, how to you differentiate between what is a genuine, ‘I prefer that parent. I want to spend more of my time with that parent’, which could actually be the case without all the spoiling… how do you?

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Mrs Arnold: Well, this is where I feel the voice of the child needs to be heard or the young 185 person needs to be heard, because they perhaps need a neutral person outside the family structure to help them to see what is within their family life and what they will get out of it. I just would love somebody to be there for these children to refer themselves to, to be able to go and talk, and if it is observed that that child needs a little bit of help from school or whatever, then there would be somebody to actually give them that guidance and support. 190 It is amazing what will… it is such a privilege to talk to young people. They are very, very aware and they just need some support somewhere.

Q90. The Chairman: Is this a growing problem in modern society? We hear that years ago it was always that families were together and the children would grow up, leave home and get 195 married in the process, but we seem to hear that modern society, and it is all round us on the soap operas on television with relationships just ending like that and it is all around us. Are you finding this a growing problem or is it…?

Mrs Arnold: Yes, it is the way that society is these days. 200 I am very fortunate. I have a stable family. I have been married many years. I have got two children and they have stable families. My husband and I feel responsible to set the example to our children about what life is all about and caring for each other. We are quite rare now. Families, single-parent families, dysfunctional families, it really is… we have always had to work hard, both at our relationships and to earn money to be a family, which we consider is 205 normal, but these days it is so easy to get help, financial help outside of a family structure and working.

Q91. The Chairman: Is it the case then, you think, that society is almost accepting that is the norm these days (Mrs Arnold: Yes.) and that there is attitude out there that this couple splitting 210 up, ‘Well, that is normal these days’, and we have just got to get on with it?

Mrs Arnold: Yes.

Q92. The Chairman: But you are seeing an increase in the number of young people who are 215 suffering?

Mrs Arnold: As part of my learning for Cruse, my training is ongoing at all times and I have attended quite a few Government workshops on the care and safeguarding of children, and what I have been aware of is that parenting… there are people in place within the Government 220 structure to help parents to be parents. Whereas this is something that was natural years ago, these days because of what is happening in society, younger people are being taught how to be parents. That is a shame – it is really.

Q93. Mrs Beecroft: Could I just ask about the other side of that coin? 225 Wouldn’t it be the case that whereas years ago for people to split up it was quite a rarity and the children were almost stigmatised; whereas now there must be some benefit to it being accepted as almost normal for people to split up because the children won't feel that they are outside of the norm anymore?

230 Mrs Arnold: I would challenge that feeling of the child. I would suggest that they do feel different, and you see that through their behavior and the way that they take themselves forward. So I would like to look at that a little bit more in depth actually because I do feel that they do feel themselves different certainly, but display their emotions in different ways.

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235 Q94. Mrs Beecroft: In your opinion, wasn't it damaging before where parents did stay, but just for the sake of the children, and were continually rowing or where it was a violent situation?

Mr Gawne: Sorry, can I just briefly interrupt? Unfortunately, I have got to go, but I have found what you have had to say fascinating. Thanks. 240 Mr Gawne left the Chamber at 11.57 a.m.

Mrs Arnold: Thank you. Well, you come into a home you think where violence is in...? 245 Q95. Mrs Beecroft: If we leave the violence element out, maybe that –

Mrs Arnold: It does happen.

250 Q96. Mrs Beecroft: I know it does. Yes. But I was thinking which is more damaging? A child to remain in a permanently acrimonious situation, even if it is not violent, or for the –

Mrs Arnold: You ask the child. You talk to the child. You get from the child what it is 255 experiencing and what it is understanding, and then you, as an adult, would be able to show the alternatives to that situation. This is what I am saying about children having an advocate, an independent support somewhere, that they themselves could get advice. They refer themselves. I carry in my bag ChildLine phone numbers, just in case. You just never know. 260 So I believe that that would be my idea of the way forward for those children and young people.

Q97. The Chairman: Do you find that because you are representing an organisation which is not connected with Government, Social Services, the establishment or the courts, that you get a 265 different reception from both the parents and children, as opposed to a Government social worker turning up to question the children?

Mrs Arnold: We have quite a different approach actually. We have quite a soft approach. We are available 24 hours a day. We are always there. We are consistent, and that is the most 270 important thing for a child, consistency. We do not have waiting lists particularly. If a child is in distress we will see them straight away. Yes, it is quite a different set up totally, and this is what I would like to see for this situation to be quite honest. If would be wonderful to have something out of the constraints of the legal systems just to support –

275 Q98. The Chairman: Because with the legal system and the Government system, we have obviously got two parties who are at odds with each other and so there is always going to be one of the parties having a little bit of mistrust in the system. Do you find that with your organisation, both the parties trust your organisation, when they might be suspicious of a Government agency turning up, who might be taking sides? 280 Mrs Arnold: Yes. I think mainly because of the confidentiality of the work that we do, and this is why I have asked to see… I have volunteered to come in private. That is so important to families, the confidentiality and privacy, and we become friends, if you like. We are always there, even if a child or family has moved on, they can always come back. They know who to 285 contact and it is respected.

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Q99. The Chairman: When you are invited to… I was going to say intervene, but you are not intervening because you are being invited, but when you become involved, have you found any cases where you involvement has actually assisted the two parents in sorting out their issues 290 and it has enabled them to actually take a step back and almost your intervention has resolved what could have turned into a very hostile situation?

Mrs Arnold: Yes. I like to get to know the child and once you have got to know the child you can then help the parents work with the child and bring the two together. Get them to start 295 talking to each other. It is the way forward for us. It is the way we work, that whilst we are caring for the child, we are very aware of the support that is needed and make it a family –

Q100. The Chairman: And what is the reception initially like from the parents? I know every case is different, but is it normally frosty at first? 300 Mrs Arnold: I think, to be quite honest, the relief is quite welcome, knowing that they have not got that issue to worry about for a little while because somebody else is worrying about it, and this is where we gently… I mean it takes time. It really does take time, but once we are seeking a family, they are on the road to recovery, if you like, and we help them through 305 different stages of their losses, whatever they are.

Q101. The Chairman: Do you think it was…? Obviously we received your letter, which we were grateful for and we are grateful for you coming in today. Cruse, of course, is well known for its bereavement counselling, but from what you have told us this morning, you seem to play a 310 much wider role in this area. Is there anything you think the Committee should be looking at to address, because it is clear that the service that you are providing has obviously helped a great deal of people, but they may not know about your involvement because they may think you are only there to deal with people who have suffered bereavement?

315 Mrs Arnold: Well, we are really. I have only helped out in desperation. Families have been desperate. Schools have been seriously worried about what have been wonderful normal children making progress, turning into little rebels. So it is not a normal service that we would offer, just that my experience with children I felt that we could help.

320 Q102. The Clerk: Is there a reason why in these cases the families did not turn to the Children’s Centre?

Mrs Arnold: I would suggest confidentiality and it is very personal centered issue. For me, they would be looking for a… 325 What you were saying earlier about Government and the third sector charities, I do not think the Children Centre would have come into their minds at all, to be quite honest. It hasn’t for me. I would not think of approaching the Children’s Centre because I do not know about the services.

330 Q103. Mrs Beecroft: What about the schools? Surely they would have been recommending more a Child Centre thing, rather than a bereavement, wouldn’t they?

Mrs Arnold: I trust the schools implicitly to know their children and to identify the support that would be beneficial to them. I think that is what has happened with our involvement, that it 335 has been identified that that particular organisation would work well with that child that is being disruptive. I know that within schools that children refer to CAMS. Yes, certainly, and there may be behind that particular referral a separation or something.

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Q104. The Clerk: Sorry, but what is CAMS? 340 Mrs Arnold: CAMS is the Children’s Mental Health organisation, which works specifically with children, usually as a result of behavioural issues within the school.

Q105. The Clerk: So are you telling us that if you are working with a child… if you are teacher, 345 for example, working with… you are concerned about a child, in a professional capacity you think the child needs help and you think that a relationship breakdown might be part of why the child needs help, it would not occur to that teacher to refer that child to the Children’s Centre?

Mrs Arnold: No. I am not too sure what information is sent out to schools. At Cruse we have 350 an information pack which goes to schools and it is a reference manual and what to do –

Q106. The Clerk: But the good news is that if some teacher with initiative thought, ‘Aha, this is bit like bereavement. Let’s ask Cruse’, or indeed might know somebody who knew you personally, who said this is the sort of thing Judy might be able to help with and you were able 355 to help, and then the thought processes is how would you make that more universally available?

Mrs Arnold: I, personally, within my role, my work with Cruse, would love to make it available. I really would. I feel so concerned about these issues around divorce and separation that I would love us to be able to offer a specific support network, but we are at the moment 360 purely bereavement.

Q107. The Clerk: Is what you are telling us that if you address, in the experiences that you have had, and you start with concern about the child, that it may be that as a byproduct you could help with the relationship breakdown? 365 Mrs Arnold: Yes. It helps tremendously for the child to understand what is happening, situation-wise, and we give them the freedom to say what they want to say in confidence, just the two of us, in a safe place. They can say exactly what is troubling them and I can take that on board. I will then discuss with the child, ‘Right, this might be a way forward. Do you think we 370 ought to talk to mummy or daddy about this particular issue?’, and we work as a team then and we find that once the parent understands the child, it starts to work. The whole arrangement calms down and there is a greater understanding. There is more openness of dialogue within the family. That is what the usual issue is –

375 Q108. The Clerk: Do you think… sorry to interrupt. Do you think social workers operate in that way?

Mrs Arnold: Again, I think the words ‘social worker’ is a barrier for some families. You know, ‘Oh, we don’t want a social worker here. They are going to take my child away’. It has over the 380 years, and through reading the press, got quite a label.

Q109. The Chairman: I think that is a fair comment really, hence my earlier question about the difference between your organisation and the Government-type agencies. There is a tendency that no family would want a social worker interfering in their business. 385 Mrs Arnold: We do not make records. We have a referral system where everything is logged, but our confidentiality agreements with everyone that we have worked with is such that we say nothing to anybody, unless we feel that there is a danger or somebody is at risk, and then we act accordingly. We have a system in place should we identify anything that – 390

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Q110. The Chairman: That must be a very difficult system to operate, because of course your whole organisation is based on confidentiality. So that must be something that is quite difficult to –

395 Mrs Arnold: It is. It is called ‘under wraps’.

The Chairman: Yes. Okay. Anything further?

400 Q111. Mrs Beecroft: Yes, I think just one last question, if I may? You are obviously very well trained in children and the bereavement aspect, which has transferred over to this other area. Are any of the other people in your organisation equally as well trained or is it more for adults who have been bereaved?

405 Mrs Arnold: No. Our organisation now has… we have teamed up with Children in Need. We have a specific children’s programme. We have just introduced primary school children support this year and we have somebody who works in senior schools. So we have five trained volunteers who can work specifically with children, who have all the checks and have all the skills and – 410 Q112. Mrs Beecroft: Have they had that experience though?

Mrs Arnold: Yes. Their experience is through the training that they have received. Cruse training is very specific and is quite noted as one of the best bereavement training programmes 415 there is, and so we are very proud of that.

Q113. The Clerk: Could I ask you to explain for the purposes of what happens next with this Committee process, what is it of what you have said that you would not like other people to read? I do not quite understand why this all had to be in private. 420 Mrs Arnold: Right. Okay. I work for… I am a volunteer support worker. My family does not really know the extent of the work that I do with young people, with anybody that I am supporting. It is that very confidence, or confidentiality, that makes our organisation approachable, if you get my 425 understanding, because we do not shout about what we do or –

Q114. The Clerk: If people read in the newspapers that somebody from Cruse was talking to a Committee and explaining on public record how best to deal with children who are in difficulties, then they will not go near it because they then – 430 Mrs Arnold: No, I would not say that. It is just that sometimes if you have to cite an example (The Clerk: Yes.) that you do not want to identify anybody –

Q115. The Clerk: Yes, well, that was part of my question because I do not think you have 435 cited any examples, certainly not that I have –

Mrs Arnold: No, I am being very careful.

Q116. The Clerk: Well, that is great. 440 The reason for asking the question is for the benefit of the Committee; it is not just curiosity. The way these Committee processes work, the next thing, or the ultimate product of the Committee is a report to Tynwald and the Committee will need to persuade Tynwald Members

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of its conclusions and recommendations, and it is always more persuasive if they can show this is what somebody said with expertise – 445 Mrs Arnold: Yes, that is fine.

The Clerk: – rather than we think this is the case.

450 Mrs Arnold: Well, having now completed our conversation, I am comfortable that what we have talked about is not detrimental to any of the work that I have done. I am quite happy for anything that I have said for you to use in your way forward.

The Chairman: Well, can I say it has been most useful (Mrs Arnold: Really?) you coming in 455 this morning. I think what it has done is draw us to a particular point we need to look at, and that is we were aware of the interest of the child, but I think to actually hear from somebody directly involved in that process outside the legal system has been most useful. So we do appreciate you coming in. Are there any further questions from the Committee? 460 Mrs Beecroft: No, I don’t think so.

Q117. The Chairman: Is there anything further you would like to say to us before we finish?

465 Mrs Arnold: Yes. When I saw the information at the start, I was absolutely delighted that at last children may the opportunity of being heard because they are always the ones that adults talk over. I have fought for the rights of children for many years and if we can bring this out now into our everyday working life, that is fantastic. 470 The Chairman: Okay. Thank you. Again, if there is anything you would like to add at a later stage, feel free to write to the Committee, please do.

475 Mrs Arnold: I will write.

Q118. The Chairman: In particular, if you, from our discussions this morning, have any thoughts or suggestions on what the Committee can look at, in terms of the law and how we could maybe look to put some of these things into practice – for example, representation of the 480 child in a court proceeding or mediation or whatever – then please keep in touch with the Committee.

Mrs Arnold: I would like to feel that there was something in place prior to court for that child that is not a barrister or whatever, and that there is some support within the community that 485 will take that family, because I think if you get the child then and the family then, things may not necessarily come to court.

The Chairman: Escalate. Yes. Mrs Arnold, thank you very much. This concludes our session this morning. 490 Thank you.

Mrs Arnold: Thank you very much.

The Committee adjourned at 12.16 p.m.

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28th May 2014 Evidence of Mr Kevin O’Riordan and Mrs Hazel Smith, advocates

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T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

S E L E C T C O M M I T T E E O N T H E C A R E A N D U P B R I N G I N G O F C H I L D R E N ( P E T I T I O N F O R R E D R E S S )

HANSARD

Douglas, Wednesday, 28th May 2014

PP2014/0085 CUC, No. 4

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2014

103 SELECT COMMITTEE, WEDNESDAY, 28th MAY 2014

Members Present:

Chairman: Mr J R Turner MLC Mrs K J Beecroft MHK

Clerk: Mr J D C King

Apologies: Hon. P A Gawne MHK

Contents Procedural ...... 65 EVIDENCE OF Mr Kevin O’Riordan, Advocate, and Mrs Hazel Smith, Advocate ...... 65 The Committee sat in private at 3.58 p.m...... 85

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Select Committee of Tynwald on the Care and Upbringing of Children (Petition for Redress)

The Committee sat in public at 2.30 p.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR TURNER in the Chair]

Procedural

The Chairman: (Mr Turner): Good afternoon. Welcome to this public meeting of the Select Committee on the Care and Upbringing of Children. I am Juan Turner MLC, I am the Chair of the Committee. With me is Mrs Kate Beecroft MHK, and our clerk Mr Jonathan King. The Hon. Phil Gawne MHK is also a Member of this Committee 5 but he is unavailable today to be with us and has sent his apologies. We are streaming on the internet and we are also recording for Hansard so please ensure any mobile phones in the Chamber today are switched off, as this could interfere with the recording. Also, for the purpose of Hansard, I will be ensuring two people do not speak at once, it makes the transcripts more clear. 10 The Committee was established by Tynwald on 10th December 2013. It was resolved, on 10th December, that a committee of three Members be appointed with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to consider and report to Tynwald by June 2014 on the Petition for Redress of Mr Philip James Walmsley presented at St John’s on 5th July 2013, seeking a review of the law relating to the 15 care and upbringing of children, especially in cases of broken marriages and other relationships. In accordance with Standing Order 5.10(4), we have heard evidence from Mr Walmsley but, given the subject matter of his petition, we have heard that evidence in private. On Friday, 7th March we heard evidence in public from Mrs Pat Ingram of the Family Court Welfare Service, and Miss Deborah Brayshaw from the Department of Social Care. 20 On 31st March we heard oral evidence from Mrs Tina Hall, a mediator. On Wednesday, 7th May we heard evidence, also in public, from Mr John Knight and Mrs Jo Thomas from the Children's Centre.

EVIDENCE OF Mr Kevin O’Riordan, Advocate, and Mrs Hazel Smith, Advocate

Q153. The Chairman: (Mr Turner): Today we are pleased to welcome two advocates, Mr Kevin O'Riordan and Mrs Hazel Smith. 25 Good afternoon, thank you for coming along today. Just to get things underway, if you could formally introduce yourselves for the record, stating your name and any position you are representing today.

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Mrs Smith: I am Hazel Smith, I am an advocate. I am representing my own views; these are 30 not necessarily the views of the Bar or the Law Society, but they are my views as a practitioner in the field.

Mr O’Riordan: I am Kevin O’Riordan, I am also an advocate. I am also president of the Law Society and, although these are my personal views, it would not surprise me if they very largely 35 reflect the views of the Law Society and other members of the Family Bar.

Q154. The Chairman: Thank you for the introductions. We have obviously provided a copy of the Petition which you have had chance to review, and also you have made a written submission to us. 40 What experiences do you have of cases like Mr Walmsley outlines in his Petition?

Mrs Smith: We have a lot of experience of these, we act for and against advocates with exactly the same scenario. But there are two sides, as I said in my submissions, to every story, and there are two viewpoints for parents as to what is going wrong. 45 I would not like to comment on Mr Walmsley’s case – I do not know what happened for that year when he did not see his child – and presumably the court process has been going on and presumably he has put in all the submissions he wanted to put in, and contrary submissions have been put in by others. So I cannot comment on the case. I noted that there was a referral to Dr Smith, who is a psychologist, so that would have taken 50 a while, I imagine, but I am only surmising.

Q155. The Chairman: Do you see many cases where there is a prolonged period where the other parent is not having any contact with the children because, certainly in Mr Walmsley’s case, there were other children involved in his family unit, yet he was prevented from seeing this 55 particular child – and the year window is certainly a long time. We have commented that that is a year which both the child and the parents will never get back. Is that a common occurrence?

Mrs Smith: Not a year, I would not have thought. There are mechanisms to bring it back to 60 court if things are not working out and because I do not know what happened I cannot comment. It is not likely, not in many cases, would you see a year.

Mr O’Riordan: No, I think, if I could come in there. It is a resource issue, because we only have two court welfare officers, and a court welfare officer normally needs three months to 65 prepare a reasonably full report on contact and residence issues. Even if it is an urgent case and it is a temporary interim report, they are looking at six weeks. So, whilst a court can and in exceptional cases will, deal with granting interim contact, and so on, without a court welfare officer’s report, effectively the court welfare officer is the eyes and ears of the court, in terms of going and speaking to members of the family and coming back and 70 recommending what is in the best interests of the child. It is a very good way of dealing with it but, because it is limited in resources, it is very difficult. You get an urgent case which goes into court and one of the advocates, or indeed the Deemster, may say, ‘Well, look, clearly something needs to happen very urgently here; could you, Court Welfare Officer, somehow go round and see the people, and find out what is going on 75 more quickly?’ There is always willingness to do that, but sheer workload at the moment means they have almost invariably got to say, ‘I just cannot do it, there is too much else on the plate.’ Even that would normally mean you were back in court within three or four months. It is unusual for somebody to go a year.

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80 The other flag that comes up to me without any particular knowledge of this case, is that for Cheryl Smith to be involved usually means it is a pretty extreme situation that she is helping to unravel. So I do not know what the issues were here; sadly, nearly always what drives these cases, and indeed makes them lengthy, is intransigence between the parents. How you legislate for 85 that is very difficult. So, in terms of just the length of time, from an advocate’s perspective you are thinking, ‘Well, there must have been something going wrong with the way the process was being applied; or some extreme circumstance for what presents as a situation where you would expect the father to be getting reasonably good contact’. 90 To not have contact for a whole year, either something went badly wrong in the process, or there was something on the facts of the case that just made it impossible for the court to do anything during that period of time.

Q156. The Chairman: We have heard cases, though, where one of the parents has been 95 granted the access, but the other is just refused. (Mr O’Riordan: Yes.) One of the frustrations from the other party is that there does not seem to be any sanction against the party who is refusing to comply with the court order, or the agreement, and there is then a reluctance of course that if you sanction the party who is not willing, then it is putting a case where the child has even less access with both parents. 100 How frustrating is that for you as advocates when you see that situation?

Mr O’Riordan: It can be frustrating; we have to move in the real world. There are sanctions. Those sanctions, certainly in England, have been increased. Here, it may happen. But it is a contempt of court, so the court has got power to punish somebody – fine, 105 imprisonment, and so on – but if you are sitting in the Deemster’s chair you are thinking, ‘Well, okay, here is one party saying, “I want contact; lock up the other parent for not allowing me contact”.’ That is not healthy for the child. It is the human nature aspect that really makes it complex. The court has got the powers and some judges will come down very hard – and indeed I have 110 been involved in cases where eventually they did. But they will try starting out carrot and stick, maybe threatening heavy penalties and saying, ‘Look, this is your last chance.’ And it is only with great reluctance in an absolutely black and white case, usually, that the court will think of actually imprisoning a parent. But it does happen. What you also have to remember, I guess, is that, mostly, the cases that end up in front of 115 the court are the difficult ones, because the presumption under the legislation is the parents should sort this out themselves. Even if they are getting separated or divorced, they are still parents, it is still their job. Unless the court has to make some sort of order for the benefit of the child – it is not like 20 years or more ago where one parent had to have custody, another access, and terminology then changed. Now, the presumption is no order, unless you have got to make 120 an order, reinforcing the idea that they are the parents and the buck stops with them. But if really, they cannot sort it, the court will get involved. The court is a very blunt instrument for dealing with quite a sensitive situation – but it is still a better instrument than you see in some other jurisdictions. Cutting to the chase of this Petition of Mr Walmsley, the moment you get more prescriptive 125 you take away the possibility of the court dealing sensitively with it, getting the court welfare officer involved and saying, ‘Well, what is the dynamic?’ It is worth also reminding everyone that the presumption is that the parents do have equal rights and more importantly, responsibilities, and that therefore there is not – or there should not be – some battle for control, and the court is trying to steer a difficult line. It is encouraging 130 equal participation in the upbringing of children, but in the real world there are always going to be cases where for whatever reason that is just very difficult, if not impossible, to achieve.

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Sometimes mental illness comes into it – I am not suggesting it does in the Walmsley case – but that can be very difficult if there is somebody who, possibly as a result of the separation, has ‘lost the plot’, to put it crudely, and it is very difficult to try and persuade parents to co-operate 135 over the upbringing of a child, once you have got this devastating impact that separation can have on, probably, a great number of people. I am probably hogging more than my fair share...

Mrs Smith: Oh no, it is quite all right. 140 That is why, I think, I put in my submissions about the education of the parents: it is the parents who cause the problem, not the court, not the advocates. The parents are not talking to one another, they are not co-operating. That is why ‘Through the Eyes of a Child’ – the very important course that the Children’s Centre runs – is so important to educate parents as to the impact of what they are doing to their children when they are warring over them, and in front of 145 them, and passing messages via the child to each other. It is horrible to see, and it is horrible to see the impact on a child. In Essex, where I practised before, I saw a child who I thought had cerebral palsy when he was brought into court – in those days the child was brought into court at the beginning of the hearing in care proceedings. He held himself as if he had cerebral palsy, he was limping, his feet 150 were turned in, his hands were turned in, his head was on one side – and that was purely because of the alcoholic family he came from, the way they treated each other. He was about seven. Within a month being taken into care – very sensitively, as it happened, to one of his teachers – he was walking normally. That, to me, is just devastating, and to see that child so affected was horrible – and that was his parents just warring about their relationship and about 155 him.

The Chairman: Mrs Beecroft.

Q157. Mrs Beecroft: Yes, please, just really, there seem to be three reasons why something 160 could go on as you say for a year without any contact. Obviously one of them, something so serious that you cannot allow contact – which clearly was not the case in Mr Walmsley’s case, something went wrong with the process or a lack of co-operation. Assuming it was not something to do with the process, and it was lack of co-operation which we know there was an element of that, would it be normal for it to be allowed to continue for a 165 year? Surely if a court said you have got to allow the other side access to the child, to see the child, to maintain that relationship correctly, at what point would a court say, ‘This is contempt, you are just not listening to us, and it is not for the benefit of the child to allow this to go on any longer’? 170 It really is, particularly when it is a small child – well, even with an older child – for a whole year, it is just destroying the relationship with the other side really, isn’t it?

Mr O’Riordan: You have got to remember that the court tends not to do anything of its own motion; it is only if it is brought back before it. So the court may make an order saying, ‘That is 175 what I want to have happen.’ Probably, exceptionally, the court will then say, ‘and I want you all back here in a couple of months to make sure it is happening.’ It is more likely to say, ‘Well, okay, I have made that order; if it is not complied with, the party who should have had the benefit of the contact can bring it back on a contempt application’, and the court would then deal with it appropriately. 180 What I do not know is whether it is that kind of failure. I had picked up, I think in the Petition from somewhere, that one of the parties… well, I imagine it was, I am not sure if it was Mr Walmsley, somebody changed advocate somewhere along the line, (Mrs Smith: Mr Walmsley.)

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and I had visions of that causing, quite possibly, a delay of a couple of months. But it should not have spun it out (Mrs Beecroft: For a year.) that long. 185 Mrs Smith: Sorry, I was just thinking of Dr Smith: her intervention would not have been a quick fix. She would not have marched up to the child and said, ‘What do you say, sonny, about this?’ She would have had to work very carefully with the child and that would have taken building up a rapport with the child. 190 So, we do not know what happened, but I am sure that part of it would not have been, ‘Come back in a month and tell us what you found, Dr Smith’; it would have been building up a rapport and finding out why the child it seems – I think Mr Walmsley said the child was saying things very negatively about him – why the child was saying those things. She would have had to investigate that very carefully so, again, I do not think that would have been a quick fix at all. 195 Mr O’Riordan: No, that sort of scenario tends to be when she does get involved, where one parent, the custodial parent, or residential parent rather, will probably be saying. ‘The child does not want to see you.’ And the child may even be saying, ‘I do not want to see you.’ Then the question is, (Mrs Smith: Why?) has the child being brainwashed by the residential 200 parent into taking that line, or is that genuinely what the child feels? Even if that can be worked out with the intervention of someone like Dr Smith, who is extremely effective – I have seen cases where she has been involved have very great effect – even if she gets to the point of saying, ‘Well, I think this child is being brainwashed’, you then have the question of whether it is an appropriate step to remove that child from the residential parent, to remove that influence. 205 Again, that is a big step to take in terms of what is best for the child. You could have – and I do not want to see it as being always this way round – but you can have someone who is a perfect mother, apart from implacable hostility to the father of the child. So, on the whole, she is doing a really good job and the child is benefiting from that good job, but you have then got the dilemma: do you say, ‘Right, I am going to take this child away from the mother, possibly 210 even place the child with the father, because the greater evil is that way being prevented.’ It is a difficult decision to have to be taken.

Q158. The Clerk: May I just come in on the question of changing lawyers? Mr Walmsley writes: 215 ‘In October 2011, I contacted an advocate regarding contact suddenly stopping, after a wait of two months nothing happened so I changed advocates in December 2011.’

‘After a wait of two months nothing had happened so I changed advocates’. Was that a 220 reasonable thing to do?

Mr O’Riordan: It might have been. It depends on ‘nothing happened’, whether that meant, ‘I was not getting contact’, rather than ‘nothing was happening’. And if legal aid was involved, that is always a delaying factor. Initially there would be green form legal aid cover, if assuming he 225 was eligible for legal aid, and that would cover a certain amount of correspondence. It might then easily take a month or more to get a legal aid certificate to allow you to go to court. So whether ‘nothing’ was purely Mr Walmsley’s perception, and the advocate was actually trying to get tooled up for war, if I can put it that way, by getting a legal aid certificate, I do not know. Against that background, two months’ delay would not be necessarily 230 unreasonable. On the other hand it could be that the advocate went on holiday soon after being instructed; on the other hand, looking at it on the black side, it may be that the advocate just sat on his hands. I do not know but –

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Mrs Smith: I have to declare an interest here, because I acted for Mr Walmsley up to March 235 2011 when he got his first order. I do not know how much I am prepared to say about what happened (Interjection by Mr O’Riordan) after that, because I was acting until December 2011.

The Clerk: It is not within the remit of the Committee, I should say, to look at the rights or wrongs of the specific case. Although it starts from his case, the job of the Select Committee is to 240 look at the wider issues.

Mrs Smith: Yes, and he was complaining, as I understood it for the main part of the delay, the January until after when he made his initial application for a residence order, I think, he went back for a residence order. Then he did not get contact for the whole of 2012, as far as I can tell. 245 I think there is an awful lot gone on behind the scenes because of Dr Smith’s involvement.

Q159. The Chairman: We will come on to the specific requests that Mr Walmsley is making in the... he obviously outlines his situation, and then comes on to what he would like us to consider doing about it. 250 We have obviously opened up the discussions with yourselves about the experiences you have had in cases like this. Is there anything you would like to say in general before we move on, anything you have prepared to submit at the start, before we move on to the specifics of what Mr Walmsley is asking us to investigate?

255 Mr O’Riordan: If I can just put in one thing. I noticed in Mrs Smith’s submissions she mentions a point which I do not specifically pick up on, but which is central to all of this, and that is the power balance between the parties outside the courtroom. I can think of a lot of negative reasons for one party in a case such as this to say, ‘I want to be in the courtroom with my former spouse, no lawyers getting in the way’, because either that 260 person will think they can dominate, because the relationship previously has had an imbalance of power. Or in some cases – and in some cases I have had, the Deemster has had to be very firm with somebody who is representing himself, it is usually that way round, in the court, is actually being verbally abusive to his spouse, big time – controlling the whole process is very difficult. That jumps ahead to one of Mr Walmsley’s specific suggestions about you ought to have to 265 go to court without advocates. For a lot of clients I can think of that would be a terrifying prospect. So I thought it was a point particularly well made by Mrs Smith in her submissions.

The Chairman: It is interesting, and I think the point Mr Walmsley specifically made, and I 270 accept what you say that there is the issue of dominance of one of the parties –

Mr O’Riordan: I am not saying it applies in Mr Walmsley’s case, I do not know, but it is a problem area.

275 Q160. The Chairman: It is, but the problem area we seem to be getting the most representation on is to do with funding, and that is that one party has to fund it all themselves. Usually they are in a position where they are not particularly well off, they are working-class people, they may have their own home, they may have a relatively good income, but that income is all tied up with running their household. 280 So the main issue Mr Walmsley favours is the levelling down. He does say that if one party cannot afford an advocate, neither should be represented. So, how could this be addressed particularly when, if one party is on legal aid, the other party has quite a job to fund their side of the argument?

285 Mr O’Riordan: It is a Treasury issue really, isn’t it – ?

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The Chairman: It always is!

Mr O’Riordan: One way is to say, ‘Well, if one party is going to be legally aided, both should be.’ 290 Another suggestion I have heard put is, ‘Well, make it easier if you are against a legally aided party to get an order for costs against legal aid, if you win against a legal legally aided party.’ As matters stand there has got to be a fair measure of unreasonable litigation conduct before that sort of thing can come in. But that comes down to being a Treasury issue, really. In an ideal world – from the point of view of the reasonably smooth running of the court 295 system and saving of time and, ultimately, money – if both parties are represented and they are reasonably well represented it makes it easier for the court and makes the whole system easier. I am not saying there are not abuses sometimes where advocates seem to make matters worse, and the cynical view is, ‘Keep the advocates out because they will just stir everything up.’ Certainly in this day and age my experience of the Manx Family Bar is that most people 300 subscribe to the more modern approach which is: your job as a family lawyer is to try and limit the acrimony, not aggravate it. Certainly the court is not likely to be particularly happy with an advocate who is stirring up, stoking the fire, rather than helping the court effectively pour oil on the water.

305 Mrs Smith: Of course, you cannot get legal aid unless your case passes the merits test, so you do have to convince legal aid that your case is worth fighting. Legal aid will not support you if you have a hopeless case, or one that is not likely to win. You have to be a 51% chance of success case.

310 Q161. The Chairman: But I suppose that is quite difficult in cases such as this, because the percentage... When we are talking about two parents they have technically got their 50-50 responsibility – which is the word we use rather than ‘rights’, isn’t it? Do you not think, though, that one of the suggestions was, ‘Well, if one party is on legal aid the other should as well.’ If somebody is not paying for it themselves then it is almost like it does 315 not matter to them because they are not footing the bill?

Mrs Smith: That is not my experience because if you... I have to say to legal aid, ‘This case is winnable.’ If my client is being unreasonable I write to legal aid and say, ‘My client is being unreasonable, please withdraw funding.’ 320 So there is a check and a balance there that you cannot just plough on taking your client’s instructions and being his or her mouthpiece, when they are being unreasonable about it. We just will not get funding.

Q162. The Chairman: When you say ‘winnable’ I was quite interested because what is 325 winnable? Surely it is about the child having the appropriate access, whatever that may be, to both parents. The only winner in a case like that should really be the child. So how do you, then, balance up one party? There is a dispute between two parents, generally it is because of the breakup, one party is arguing for some sort of contact with their children – they may have lived with them for a 330 number of years – but the dispute is there. But one party is entitled to legal aid. So how do we decide – or how do you decide – who is the winner?

Mr O’Riordan: It is not always black and white: some are, but you are quite right, it is usually some sort of shade of grey. Whilst I do not think it is wholesale abuse, I am certainly aware of 335 cases where somebody has legal aid and therefore they know they have an advantage, because the other party, faced with the choice of fight on or maybe settle for some sort of compromise, is quite possibly going to be financially constrained into accepting a compromise.

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Alright, the legally aided party, the advocate may go back to legal aid, and legal aid may pull the funding. But there are all sorts of shades of grey in there that allow quite a lot of room for a 340 legally aided party to dig in his or her heels rather more than the privately funded party who is forced into submission for financial reasons. As I say, I do not think that necessarily happens widely, it certainly does not happen as widely as it might have done in years gone by when, quite possibly, legal aid was less controlling when the purse strings were not quite so tight. 345 Q163. Mrs Beecroft: Yes, could I ask then, in certain cases is it possible for somebody who is on legal aid to have the advantage because of that?

Mr O’Riordan: Yes, absolutely. 350 Q164. Mrs Beecroft: You accept that as a reasonable assumption?

Mr O’Riordan: Yes.

355 Mrs Smith: But also I would say that litigants in person sometimes do not understand the issues, and they will fight on when it is totally unwinnable or unpursuable on their side, but they cannot be stopped because they have a right to be heard. There is nothing, for instance, a client or litigant in person will stand up and say, ‘But my mate down the pub told me that if you do not pay for the child you do not have to see them’; or the other way round, if you do not see the 360 child you do not have to pay for them. So you are fighting the man down the pub all the time, who is telling this litigant in person that he has got a case, and he will stand up and say everything he wants to say. He will go off on tangents that take an awful of court time, advocates’ time and, yes, there should be a more level playing field, but I think the checks and balances we have at the moment are the best we can do, 365 unless you are prepared to say that everybody should get legal aid.

Q165. The Clerk: Just for the record, do you want to say in words what is the position? Is it the case that if you do not get the access, you do not have to pay?

370 Mrs Smith: No, it is not; it is not pay-per-view, I think.

Mr O’Riordan: No, but you do get a certain attitude, digressing slightly, on that one. You get the situation where maybe a party is on Social Security benefit and therefore the benefit authority is saying, ‘You must go and claim maintenance’. That person is reluctant to go and 375 claim maintenance, partly because they think it will have the effect of making perhaps an absent father who is not showing any interest in the child say, ‘Well, if I am paying, I ought to have contact’, and they do not necessarily want to encourage that. Equally, I have had cases where maybe a father thought twice about claiming contact because he thought it might provoke a claim for maintenance, although the things are treated 380 entirely separately. Human nature is certainly likely to link them.

Q166. Mrs Beecroft: In your view is there anything else that could be done with the current system then, to make it fairer?

385 Mr O’Riordan: On the financial side, if it is an argument about money, we already now have coming into force the idea of – I am not even sure if it is called a statutory charge over here – but it is a system which has long been available in other jurisdictions where you get legal aid but out of your winnings you have to repay the legal aid fund, subject to certain constraints, usually.

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That is, I think, going to be an important step not only in protecting Government money to some 390 extent, but also in levelling the playing field. How you do that in a childcare case is more difficult because, quite rightly, part of the thrust of the legislation and indeed the attitude of the courts, is that if people have an issue about the welfare of a child, they should not be discouraged from bringing it to court. So the court’s message is, ‘Unless you are behaving extremely unreasonably, you need not fear the sanction of 395 a costs order against you for going to court to have an argument about the welfare of a child.’ There is some of that in sorting out the finances, in that – digressing slightly – if you go to court for anything else, you sue somebody because they owe you money, ‘costs follow the event’ is the watchword, meaning, if you win you will get your costs, unless there is a good reason why not. 400 In family cases it is not as clear cut: costs do not necessarily follow the event unless somebody is behaving highly unreasonably. The difficulty is, as you have highlighted, children welfare issues are certainly not black and white, but because of the discretionary element of deciding financial issues in divorce, that is not that clear-cut either. I think the statutory charge is helping on that but I do not see really, on the childcare side, 405 that could help. The only other way is to see some way of whether it is a Government loan, perhaps, rather than completely free legal aid to somebody who would not be eligible for legal aid normally, but maybe can get Government help subject to paying it back over a period of time, something like that. It comes down to a funding issue and really the only way to level it is for both parties to have 410 some sort of access to lawyers. And, despite the fact that lawyers often get bad press and so on, I think in children cases I can think of a lot of lawyers who do an excellent job in trying to knock some sense into their clients and get them to agree arrangements for children. If you wanted to add anything… ?

415 Q167. The Chairman: In a case where one side has legal aid and the other has not, would it be reasonable to expect the legally aided lawyer to provide that procedural advice to both parties in the court? Isn’t that where the judiciary are getting a lot of frustration, because where you have got the people representing themselves, they are not familiar with the procedures of the court so there 420 is a lot of time taken up, whereas if there is a lawyer who is funded by the legal aid fund they could be there to guide you through the process?

Mrs Smith: There are some tensions in that. I have been against a litigant in person in the Staff of Government Division, and as part of the 425 Staff of Government Division bundle you have to have the transcript. So dutifully, because he is a litigant in person it was his appeal, I got the transcript – but legal aid would not pay for it. So I ended up paying for it because legal aid will not pay for me to assist the other side in his case. He had not got the transcript, he was not going to get the transcript, it cost quite a lot of money. So I am afraid there are tensions there because legal aid will not fund me to assist the 430 opposition.

Mr O’Riordan: I think you were thinking perhaps that might be a change to legal aid that could help... (The Chairman: Yes.) And it might, although my experience is that it is not impossible, but it is very hard if you are one party’s advocate to win the trust of the litigant in 435 person on the other side. Equally, certainly some litigants in person have what I would call a chip on their shoulder and they are not about to be told what to do, least of all by the other party’s advocate. At best they will want some direction from the court. I think you come back to the possibility that, I suppose there could be something like an 440 advocate retained by the court, whether for a specific case-by-case basis or generally, having

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somebody – and again it is a Treasury issue – but you could have, I suppose, an advocate seconded to the court in some way, not even necessarily permanently, to provide procedural advice. Not quite a fully-fledged duty advocate scheme, but somebody the court could contact and could be paid on an ad hoc basis quite possibly, to advise a litigant in person on procedural 445 matters. I am thinking that… I sit sometimes as the Deputy High Bailiff’s help, as a magistrate’s clerk, and I get paid, not a particularly exciting rate, but it is interesting enough to be a bit of pocket money. I am thinking that something like that for a duty advocate system, if we were going down that road, might be something that advocates were prepared to help with without looking 450 at it and thinking, ‘Well, that is not worth my while doing.’ I can imagine a few advocates out there listening to this saying, ‘Is he barking?’ But I could see there being some interest in trying to help the system along in that way without it bankrupting the Treasury, if I can put it that way.

455 Q168. The Chairman: Could that not be a duty of the courts infrastructure? One of the frustrations I know I have had in the past when dealing with the courts is you ask them about the procedures, and how things... and they say, ‘We cannot give you legal advice.’ But, surely, the procedures of how they operate is not really legal advice on your case. So why couldn’t that be a function of the court to assist people in getting them through the 460 procedure, not necessarily their case?

Mr O’Riordan: It could be, but it is not always straightforward. I know there are a number of leaflets and so forth – some of which have been perhaps imported from across the water – and there is increasingly an amount of information available. But it is very difficult, I guess, for the 465 clerks, because unless you have a clerk who is trained and experienced to quite a high level, the court rules are something of a jungle – and it is quite a struggle for advocates to get them right, and indeed Deemsters. It would be, I think, quite onerous to expect the courts to give much guidance. Basic guidance, yes, but it is tricky water. It is a nice idea and I am sure it would be achievable, but you 470 might have to have a ‘super clerk’ who was virtually an advocate working for the court. That is where I could see perhaps some kind of ad hoc duty advocate type arrangement might be something to look at that could be funded... that, okay, will add to somebody’s budget somewhere, but it might be something that would prove helpful without going the whole step of providing legal aid on both sides, or something like that, that could be obviously quite seriously 475 expensive.

Q169. The Chairman: But surely though, a post like that may actually have the effect of reducing the overall legal aid expenditure, (Mr O’Riordan: Absolutely.) because it would streamline the proceedings. So something maybe for the Committee to investigate that may not 480 result in an increasing cost to the fund, it may actually be –

Mr O’Riordan: No, it would certainly have the potential to reduce the burden on the legally aided party’s advocate, who at the moment is probably going to have to jump through extra hoops because they are not dealing with an advocate on the other side. So something like that 485 might well –

Mrs Smith: It could only be procedural, though, because you would get the whole story if you sat for a long time with the litigant in person. It would have to be purely procedural, and purely cutting through the facts to help them deal with the case efficiently. 490 Mr O’Riordan: Yes.

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Q170. The Clerk: Do you think that is practicable? I mean, litigants like to tell their story, don’t they? If you sit down with a litigant and say, ‘I 495 am only going to give you procedural advice’, would you get away with it?

Mrs Smith: Otherwise you are going to be clogged up with a long, long story… and only half a story because, invariably, you will not get all the documents and so it is going to be very difficult. I think it would have to be procedural; I do not see how it would work otherwise. 500 Mr O’Riordan: It would take careful scrutiny. I do not see why there should not be availability of advice on some kind of basis, whether through the court, or how it was arranged. It is not a lot different than – not necessarily free – but an advocate giving advice sessions at a fixed rate, which is certainly something we do and I think other advocates will do. 505 Somebody does not have to come into my office and say, ‘Right, here you are I want you to deal with my whole divorce.’ They might come in and say, ‘Look, I just want you to let me know whether I am on the right track.’ These days a lot is available on the internet in the way of advice, procedurally and on the law. I have had clients who have come in and they have said, ‘Look, I just want to talk through 510 with you, I have done my internet research, done this, that and the other; I just want to know that I am on the right track, and could you give me a couple of pointers.’ I might see that person for an hour, or an hour and a half, and there is usually quite a long story to tell so it is not something you are going to turn round in 10 or 15 minutes – but sometimes that is all the guy needs, or the lady needs, and off they go and manage to conduct 515 the thing largely themselves. So, whether trying to make that available through the court, again, or through legal aid in some way, I do not know. Again, it is something that could end up certainly not significantly increasing the budget, and quite possibly in helping to reduce the budget if it persuaded people to go to mediation, or even settle anyway, and to have more realistic expectations of what the 520 court can do for them, whether in childcare or some other areas of family law. So, all of that could be something to look at, and perhaps be more achievable in a jurisdiction like this than a bigger jurisdiction because, whilst there will clearly be people who want that service, I do not see it as being something that would be such a floodgate that you would immediately have to take on a full-time advocate at the court to deal with it. 525 It might be something you disagree with strongly, I do not know?

Mrs Smith: I only know my experience of the mediation duty days, which are not taken up. I did sit at court waiting for clients, and approaching clients, who invariably did not want to really know about mediation. So I am just concerned that it may be that the litigants in person need to 530 be got earlier, before they put their application in. I know it is compulsory in the UK that they cannot put in an application until they have had a mediation intake. I think that is maybe a step too far, but mediation is really a very useful and more positive resource than battling out in court.

535 Mr O’Riordan: It is, but sometimes people just are determined to get it off their chest, somehow or other. Mediation is fascinating because there used to be the thought that it always had to be right at the beginning, and then a few years ago there was a Court of Appeal case in England where the Court of Appeal, having heard everything – it was not a family case – sent the parties off to mediate. 540 Everybody was… ‘You cannot do that at this late stage!’ The short answer is, ‘Well, yes you can.’ Sometimes it is perfect timing because everybody is punch drunk, they have spent lots of money, they have gone round and round in circles, they have got nowhere, and they are actually prepared to sit down and talk sensibly.

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I think translating that into a family context, they are going to have needed in some cases to 545 get it off their chest and take a swing at the other side, before they can see the light in terms of wanting to go to mediation. Although, equally, you will get people who recognise that starting off trying to mediate is a good idea but, frankly, people who start off if both of them think that mediation is a good idea there is a good chance they can sit down just the two of them and make sense of it. 550 Q171. Mrs Beecroft: Yes, please, I have three questions at the moment if I may – I will ask them separately so you do not have to remember them. Going back to the litigants in person, and you were saying about… or if one had an advocate, getting that trust that what the advocate was telling the other side, so there was that trust 555 between the advocate and them. Would it work where they were both litigants in person, but they had one advocate advising on the procedure?

Mr O’Riordan: If it is at daggers drawn they will, because if they knew the same advocate was 560 advising both of them I can foresee cases where one or other would think that somehow the other was getting an advantage. As a general principle the idea of having a potential adviser, yes, and it is the kind of thing that an advocate mediator could probably do, because it fits into that kind of bag. So, certainly I could see that as something worth looking at. If the parties were at odds, 565 needed help on the procedure and the system was such that, ‘Okay, here is somebody to help you procedurally; they are going to be constrained, they are not going to advise either of you on the legal principles.’ It could be something worth looking at. Do you think?

570 Mrs Smith: I am concerned that we are focusing on procedure, where the procedures are not, in my view, particularly onerous in a childcare case. You say your side, they say their side, the court welfare officer reports – there is not much procedure in a childcare case as far as preparing bundles and all that sort of thing is concerned. So, maybe in a financial matter, yes, because then you have to have your affidavits and all 575 your evidence exchanged. In cases relating to children the procedure is much more straightforward and I wonder whether that advocate would in any way assist, because if they cannot give advice they cannot bang their heads together and say, ‘You are not…’

Q172. Mrs Beecroft: I was sort of asking that because I thought Mr O’Riordan said earlier, 580 that it was quite a complex matter to get everything ready for court and to go to court, which is why they needed the advocates because it was so complex? I am getting a bit confused here…?

Mrs Smith: Procedurally, it is not complex; factually, it is very complex. You have to prove 585 your case and you have to get your evidence together, so if you are wanting to say that this man is a very bad father, blah, blah, you need to have your evidence marshalled; you need to know what evidence you have to look for; you need to make sure you have got your statements and they set out everything that you want to say, and that they are what the court will want to hear about, the facts. 590 But procedurally, as in, ‘The next step you take is filing your evidence’, I do not think it is very complex.

Mr O’Riordan: No, I think that is right, although the nature of the evidence might need guidance. So, ‘procedure’ may be the wrong word but we are not necessarily talking legal advice

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595 here; we are looking at a situation where the person has to put in witness statements, what should they include and how should they set it out? It is basic stuff like that which is procedural, but is not as complex as procedure if you have a sophisticated civil case. We were discussing earlier court clerks giving guidance and so on: it would be easier for them to do that in a family case than in a big civil case, because the rules are 600 less convoluted. But I think there is still this issue of how you present the evidence to best advantage in terms of what the court expects, and so on. That is guidance that probably people could benefit from quite a bit. Also simple things like fully understanding the court welfare officer’s report – the trouble is there is inevitably a certain amount of jargon. It is not as impenetrable as some jargon one runs across in life and indeed in 605 other areas of law, but it is still some, and you get a litigant in person who gets the court welfare officer’s report and is not necessarily going to be quite clear on what she is driving at, even if it looks fairly clear what her conclusions are. So, it is guidance in a way that falls short of giving legal advice, but it is not as intricate procedural advice as some other areas of law – but it is a fine line between where does the legal 610 advice stop and the procedural advice begin.

Q173. Mrs Beecroft: That leads me nicely onto my second question, actually. We are just talking family matters now, because it is the care and upbringing of children that this Committee is focusing on. The question I had written down is, was it possible to simplify 615 things when it was purely… ? We are not talking sophisticated civil cases over a lot of money, we are talking about the children in this case. Is it not possible to simplify matters so that there is not this jargon that people do not understand in the documents and everything, to make it easier? It is really what is best for the child that everybody is obviously focusing on, so anything that 620 can be done to make it easier and simpler and less antagonistic, less daunting, for people to understand – surely that has got to be a good thing?

Mrs Smith: I do not think our court forms are particularly complex at the moment. There has been an overhaul of the child application which used to have pages and pages and pages, that is 625 now far simpler. It is a matter of form filling in and it does say, ‘In what order do you want, what do you want?’ So it does ask, it prompts you –

Q174. Mrs Beecroft: So it is not as complex or daunting as it used to be?

630 Mrs Smith: Not as complex, no, and a lot of people are doing it themselves; litigants in person are doing it themselves. So it is not that, I think it is the misunderstanding of what the law can do for you when you do get to court, that takes a long time explaining. The Deemster or the High Bailiff will have to explain, ‘I cannot do that; I can only do this’, or, ‘This is how I have to go about it.’ 635 They have a perception, they are not legally trained – they are not expected to be legally trained – but cutting through what the law is, is very difficult for a litigant in person, and to understand what the guidelines are. We are working on precedents, statutes, all those things that they cannot possibly know or understand, but they need to know and understand them to get to court, to understand what 640 the judge can do for them. So I do wonder whether a person who is going to be giving procedural advice will get sucked into giving legal advice as well, because the story will have to be told to the person giving procedural advice.

Mr O’Riordan: Yes, and a lot of the problem is how the story is told, that is the procedural 645 aspect. The form to fill in to say, ‘I want whatever sort of order it is I want’, is fairly straightforward but even that involves a basic knowledge of, ‘Well, what can the court order?’

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Then, further down the line you are going to have to put in a witness statement, backing up your application. What the court is hoping it will not get, is simply a long slanging match between the parties – but all too often it will get that. It is somehow getting some control over 650 that, I suppose, at an earlier stage that could help. Again, there is a bit of a crossover with mediation. So it is something where really the procedural advice in a childcare case… Well, there are two sorts: there is private childcare case which is husband and wife, or parents, arguing about the upbringing of the child; as opposed to public law where you have got Social Services or the 655 Department of Health and Social Care getting involved. In those cases it is fairly straightforward but it would be useful, particularly for a litigant in person, to have access to somebody who said, ‘Right, here is the Children’s Act, these are the orders the court can make. Do you understand what these orders are and is it one of these things that you want the court to order? If not, what is it you are trying to get the court to order, 660 and can the court even order it?’ That kind of basic advice would be needed and would involve some part of the story, but the system on the whole for private law, is usually quite streamlined. The court rules help keep it that way, the forms help keep it that way and the Deemster certainly helps keep it that way saying, ‘Well I want short statements, and I want the court welfare officer to come along and tell 665 me which way the wind is blowing.’ It is the court welfare officer’s report which is very often key to it. Then when we turn across to the public law cases – which are obviously also within the remit of upbringing of children – there is a pilot scheme going on at the moment which is hopefully going to result in that becoming rather more streamlined than it has been previously. 670 Q175. Mrs Beecroft: My third question at the moment would seem to be a little bit of – I would not say ‘disagreement’ that is too strong a word – but the slight difference of opinion on when mediation should be got. I think you said the earlier the better and then, well maybe not, and I just wonder what exactly… When would you think? 675 Mr O’Riordan: The earlier the better, but it is never too late. (Mrs Smith: Yes, exactly.) There are some cases where on day one the parties will not go near it, but 6 or 12 months down the line when they have realised that the court is a blunt instrument that really is not going to give them an answer they like – and there is a risk that the court will impose an answer that neither 680 of them likes – they can see the point of, ‘Well, maybe, actually, even if we do not sit down together, we might sit in separate rooms and let a mediator do some shuttle diplomacy between us and see if we cannot come up with a better solution to our difference of opinion, than the one that Deemster is trying to dump on us that sounds like a nightmare for everybody.’

685 Q176. Mrs Beecroft: So, after ‘wasting’ – in inverted commas – a lot of court’s time, a lot of advocate’s time, they go back to the mediation as they would have done in the first place. So would you be in favour, then, of mediation being prerequisite to going to court?

Mr O’Riordan: An attempt at it, yes. The English approach – and I think it is as good as any – 690 is that you have to have a meeting with a mediator who will explain the system to you, but if you do not want to touch it with a barge pole you are not then forced to sit down and try to mediate. I think that is probably the right approach. There are many purist mediators who say, ‘You cannot mediate except where it is fully consensual.’ You will get other mediators who will say, ‘Well, unless you have got a bit of a pistol 695 pointed at the head, they are not going to try sitting down in the first place.’ There was a big debate in England where one camp, I think, thought that the idea of compulsory mediation meant you were forced to sit in a room and actually mediate, whereas the thought was, ‘No, you have got to sit in a room with a mediator and have the system

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explained to you.’ Although it has been around for a while now it is still something that is very 700 often misunderstood. So, I think, having it put on the radar early on is good, but I think it can be useful further down the line. There are different sorts of mediation, and one type of mediation just involves the parties, and that is usually the one which is done at an earlier stage. But in quite a lot of, sometimes quite big money cases, when they are ready for trial and they have swapped all their 705 paperwork and everything else, they will then go and see a mediator with their advocates and you have got a different sort of dynamic in the mediation, that it will then get resolved very often before it has actually gone to court for the final hearing. That is another acceptable way forward, and what usually will happen now, increasingly, is that the court here on a financial issues case will actually include in the direction, that when you 710 have swapped all your financial information before you are given a trial date, go and try mediation.

Q177. Mrs Beecroft: But, in purely childcare matters – and upbringing?

715 Mr O’Riordan: The earlier the better; it has got to be.

Q178. Mrs Beecroft: Would there be any… I mean, I went to a mediation once and did not give it a hope of working, and it very much surprised me. We were in separate rooms, as you said because – it was not a marital thing it was something totally different – but the parties were 720 in separate rooms and the mediator spent all day just going back and forward. So over the upbringing of a child, where the two parties maybe cannot even stand the sight of each other or will not be in the same room, which I can understand, I cannot see what could be lost by actually even trying that way. A good mediator will say, ‘Well, what is it that you want?’ And go back and forward – (Mrs Smith: They do, we do.) 725 So I am just not quite sure why just for the child upbringing side, the childcare side, not the financial stuff, but just on the childcare side of it why you would not say that should be tried before you go –

Mr O’Riordan: It should be tried, I agree, but if one party or the other says, ‘I am not 730 prepared to do it’ –

Mrs Beecroft: But if Government, which it is, holds the purse strings for legal aid –

Mrs Smith: But legal aid insists that you have mediation first. Legal aid will say your 735 certificate is limited to negotiation and that includes mediation from the outset –

Q179. Mrs Beecroft: That is mediation, listening to what the mediation process is, isn’t it, rather than actually trying mediation?

740 Mr O’Riordan: No, it can be actual mediation.

Mrs Smith: No, we get legal aid for mediation, three sessions usually of mediation. But the difficulty is, litigants in person will not pay the fee for the mediator.

745 Q180. The Chairman: So, what happens then?

Mrs Smith: Well, you cannot mediate.

Q181. The Chairman: So the legal aid will only fund one party to attend the mediation, 750 whereas –

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Mrs Smith: The legally aided client will get the funding for usually three sessions of mediation.

Q182. The Chairman: But that is only half the cost? 755 Mr O’Riordan: Occasionally.

Mrs Smith: That is their own cost of the mediator, yes.

760 Q183. Mrs Beecroft: And they have to try that before – ?

Mrs Smith: Yes, they have to.

Q184. Mrs Beecroft: So, if you are on legal aid now, you have to try mediation first? 765 Mrs Smith: But if your opposite number will not mediate, you cannot mediate on your own – so you are stuck, you cannot mediate.

Mrs Beecroft: I must have got confused, I did not realise that. 770 Mr O’Riordan: And if both parties are legally aided, obviously it can get easier to put pressure on. But you then have the other difficulty that arises, which is that legal aid is saying to the legally aided party – but this is just with one legally aided – ‘You must mediate.’ The person on the other side is saying, ‘No.’ 775 You have then, as the advocate for the legally aided party, got the difficulty of persuading legal aid that they are now actually causing your client to be at a disadvantage by not letting them move forward with the court application in a situation where an attempt to mediate has simply been treated by the other party as a way to delay things.

780 Q185. The Chairman: Can I ask a question there, which goes back to an earlier comment from Mrs Smith, and it is all to do with one party refusing. What is the reason they refuse? Is it the fact that they have a misunderstanding of what mediation is? Why do they – ?

785 Mrs Smith: It is usually the cost –

Q186. The Chairman: It is the cost?

Mrs Smith: It is often the cost. 790 Mr O’Riordan: It can be the cost, I am not sure that is the driving factor. I think it is more likely to be a misunderstanding as to what mediation is, or a conviction that mediation is not going to achieve anything. Sometimes you get an attitude which says, ‘I do not want to have to talk about this, I do not want to have to compromise, I will do what the court tells me to do.’ 795 You do get some people who, without necessarily wanting a battle, will not take the decision for themselves.

Q187. The Clerk: Can I ask: I think I understand that the mechanism of legal aid cannot be used to force or encourage a privately funded party to participate in mediation. But can the 800 court not do more to encourage that?

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Mr O’Riordan: It can encourage, but if there is a refusal it does not really have anywhere to go; that is the trouble. What the court can do – and this goes back to the other point I was making – if the court says, ‘Well, we are not prepared to give you a hearing date until you have 805 attempted mediation’, one party could say, ‘Well, I am not going to mediate.’ That can just be a delaying tactic. If the other party is anxious to get to court and get a decision and indeed the child’s welfare may need a decision, it takes the wind out of the court’s sails in terms of trying to force them. Then there is this whole idea of mediation being voluntary. I think there is a sea change over 810 here. I am encouraged by the number of people who are now prepared to try mediation, whereas a few years ago they would not have given it house room. So it is gaining credibility, but I think there are still a fair number of people, particularly litigants in person out there, who regard it as some kind of rather namby-pamby, touchy-feely process that they are just not prepared to have any part of. 815 Q188. The Clerk: Do you think that there is scope for a deliberate attempt to change people’s attitudes? I am thinking of seat belts and drink-driving –

Mr O’Riordan: Absolutely, yes. 820 The Chairman: An image overhaul, effectively!

Mr O’Riordan: It is coming, it is encouraging how well mediation is catching on over here, which is part and parcel of it being a small enough jurisdiction. Word gets about, the court can 825 make its views known – and one sees some of the problems they have got in England now with a fall-off in mediation as a result of the reduction in legal aid funding. I think there are a fair number over here of litigants in person even, who can see that if they are going to have to go to court and they may have to start using a lawyer to go to court, and they may have to pay that lawyer, that paying a mediator could be a cheaper option. 830 One of the problems, as Mrs Smith says, is that you have got one party legally aided – legal aid now, I think, are mainly only prepared to pay half the fee, although I think at one point they were looking at sometimes paying the whole fee to get round that problem. You will get a party who is determined that he or she is sufficiently switched on to be a litigant in person, that would be their choice, they are not going to have to pay anything to go 835 through the court process; if they go and mediate they have got to put their hand in their pocket and pay out whatever it is an hour for the mediator. They see that as a good reason not to go to mediation.

Q189. Mrs Beecroft: Can I just ask – I could have misheard you – did you say that where 840 there had been a reduction in legal aid funding, there had been a fall-off in mediation?

Mr O’Riordan: In England, yes.

Q190. Mrs Beecroft: Could you just elaborate. Do you know why that would be, because I 845 would have expected it to be the opposite way round?

Mr O’Riordan: Because people do not want to have to pay for it themselves.

Q191. The Chairman: So, what happens to their disputes? 850 Mr O’Riordan: They may go and take them to court as a litigant in person.

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Mrs Smith: That is why the whole system in England is clogged, and there is a lot of judicial angst about how they are going to deal with all these litigants in person. I think I put in my 855 submissions that the court is now appointing an independent lawyer to help the court to make the submissions that the parties should make, because they cannot get the submissions from the parties, they have to appoint somebody different.

Mr O’Riordan: It is an old system, but it is being applied differently. The court, in the past, 860 has sometimes appointed an amicus, a friend of the court, a lawyer to advise the court when there is a particularly difficult area of law coming up, or something which is not being covered for whatever reason by the lawyers for the parties. Indeed, it is not a million miles off the situation in public law, children care cases and, occasionally, private law where the court will appoint a guardian to put the interests of the child. 865 In care proceedings the child will have guardian and be separately represented; in private law proceedings it is an option. If you get an intractable dispute and particularly a child old enough to express a view, in appropriate cases the child will end up by direction of the court having his or her own lawyer and a guardian, so that the child’s point of view is presented to the court separately from that of the warring parents. 870 It is not a common way forward, but it does happen from time to time, and that touches again on situations like Mr Walmsley’s – not necessarily like Mr Walmsley’s because I do not know the facts of the case. One could foresee a situation where there was a big hold-up in getting contact going, and the court had grown impatient with the parents and thought that it was their doing, and that the child was losing out. The court might say, ‘Well, I am going to order 875 that this child has a guardian and is separately represented, so a lawyer can come along and present me this child’s point of view in this dispute.’

Q192. The Clerk: Who pays for that?

880 Mr O’Riordan: Usually the Government.

Mrs Smith: Yes, that is another problem.

Mr O’Riordan: Chances are it would be on legal aid, although sometimes I know it was 885 funding that fell sometimes between legal aid and the Attorney General’s Chambers, but public purse essentially.

Q193. The Chairman: We want to try and draw the session to a close in a few moments, but we have discussed this afternoon a whole raft of issues that you are faced with as advocates, 890 and we are faced with as people lobby us. The beauty, of course, with us here in the Isle of Man is we are able to look at anything and make changes to suit our own domestic issues. So, what do you feel from this, to aid our investigation? What areas do you think we should be looking at which would make the process better? Are there any areas specifically you think we should be addressing? 895 Mr O’Riordan: I think increasing the resources to the Court Welfare Officer Service would make a big difference on childcare in private law cases.

Mrs Smith: I would echo that. But also mediation: I think there needs to be an education 900 programme on mediation and how that can assist parties. Mediation not only helps them to come to their own conclusions, it is also an opportunity to make them face reality about what their actions are doing to their children. Often when you are sitting with a non-legal mediator they will focus on that part of it with the parties, and talk about the effects that you can have on a child by your warring and the comments that you make, and the body language you use. So

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905 that, I think, has a twofold benefit in that you are not only looking at them to solve their dispute, but also trying to educate them as to what is the likely effect of continuing with bad conduct in a relationship.

Q194. The Chairman: What about the law itself? 910 We had my own Private Member’s Bill change the law with regard to parental responsibility which, I think, one of the Deemsters commented was a long overdue change. That change is now in statute. What about the law itself? Is there anything in particular in the Children and Young Persons Act which you find frustrating, unworkable, or that needs attention; or is the Act in fact not the 915 problem here?

Mrs Smith: My view is the Act is not the problem. The court has the tools to resolve a dispute with the child as the focus, and that always has to be the case. The difficulty is the parties themselves and how they deal with the matter. I think 920 the sooner we can get people to look at behaviours before they even start thinking about court, the better.

Mr O’Riordan: I would agree. Again, going back to the resource point, not just the Court Welfare Officer Service but also 925 possibly through the Children’s Centre, someone like that. Originally there was very good mediation available in children matters from Sue Smith, initially from the Children’s Centre, subsequently as an operator on her own. She, for various reasons including health, decided she could not carry on certainly at that level. Whilst there are a number of other mediators about who can deal with family matters generally, the focus is probably more on money, because if 930 you are going to deal effectively with disputes over children you need more training experience in that particular area. Going back quite a few years now, there was a time when the Court Welfare Officer Service did provide a sort of informal quasi-mediation service. There were enough court welfare officers that one could be left to try and, perhaps, bang people’s heads together, to use the vernacular, 935 and see if they could work it out. If that did not succeed then there would be another welfare officer who could do the report for the court without there being a conflict. Now it has been a long time since they have had the resource to do that but, again, the Court Welfare Officer Service is extremely helpful to the parties, to the court, to the advocates. I think they do a fantastic job but I know they are very stretched, and in terms of overall costs and ways 940 of trying to oil the wheels of the system, if you wanted to do one thing that would help the courts and everybody else move forward more quickly on children disputes in the court process, it would be increasing that resource. I have got no doubt. There are other bits of fine-tuning which might help: education about mediation and so on. I do not see at the moment any obvious changes in the law that would prove helpful, but 945 Deemster Corlett is commissioning a general look at family law and ways that it can be improved upon. There have been changes in England: I think the cautious approach is to say give them a couple of years and see whether they go anywhere useful there, before rushing to adopt what they have done – but certainly there is an open mind to changes that can be made. I think that, as Mrs Smith has said, the court has got the tools at the moment pretty 950 effectively.

Q195. Mrs Beecroft: I take on board what you are saying about the resources of the Family Court welfare officers, but the Children’s Centre themselves has told us that they would like to be able to make submissions direct to the court rather than waiting for them to commission 955 them. How would you feel about that? What are your views?

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Mr O’Riordan: I would feel very happy with that –

Mrs Smith: I would be happy with that, yes. 960 Mr O’Riordan: It has been a problem before. They have had resource issues as well, and I think there have been times when advocates have tried to go and get information from the Children’s Centre about what is happening on contact, but for one reason or another that has only been accessible through the Court Welfare Officer Service. 965 I think there is always going to be the question of making sure that what you get fed back into the court system is of sufficient quality – and that is not belittling the Children’s Centre at all – but there would need to be some sort of quality control on the level of staff who were feeding information back to the court. I think that is where it has been previously – if there has been a big staff turnover or whatever – if the court welfare officer has been the filter, then the court 970 has been able to feel happy about the information it is getting. That is a minor issue, really, and I think it would be beneficial if there was more feedback, particularly where there is supervised contact going on and this kind of thing, and it is literally a contact report. If it is a public law case you would get all of that through Social Services. But certainly I do not see any harm in that. 975 Q196. The Clerk: Sorry, can I just ask one last question, Mr Chairman? Mr O’Riordan said at the beginning that if you involve the Family Court Welfare Service it takes about six weeks to it produce a report –

980 Mr O’Riordan: Three months for a full report, six weeks for an urgent report

Q197. The Clerk: Six weeks for an urgent report… We had the Family Court Welfare Service themselves talking to this Committee a little while ago, and I think they explained that one of the reasons it takes so long is that it takes that long to 985 do the work. In other words, you have to go and meet the family, you have to go back another day, you have to build up trust and rapport with the child – depending on the age of the child – and so on, and so forth. If that is the case, then how is it that having more Family Court welfare officers would speed it up? 990 Mr O’Riordan: My understanding is that if they did not have a whole fistful of cases to deal with at any one time, it would not necessarily take them three months, or even six weeks. Because that is usually what happens: we might have something urgent that sounds like it could be nipped in the bud, if the court welfare officer could go around tomorrow to speak to the 995 parents and speak to the child, maybe head off trouble that was a bit of a storm in a teacup. But, as matters stand, whilst very occasionally that might be possible it is usually a case of the court welfare officer saying, ‘Well, I cannot actually take that time to do that now, because I am too stretched as it is handling my existing case load.’ My understanding, which could be wrong, is that the three month period for the full report 1000 and the six week period for an urgent report is largely dictated by the workload as a whole, rather than it being a fact that, even if it was the only case the court welfare officer had, she would need six weeks to prepare an urgent report. Does that make sense?

1005 Mrs Smith: Yes, I think, it is a variable three months, so it must depend on their workload because the court always asks the court welfare officer, ‘How many weeks do you need?’ It is not, ‘Oh, you will need your usual 12 weeks,’ it is ‘How many weeks do you need?’ So it must be –

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Mr O’Riordan: Longer over Christmas than at other times. 1010 Mrs Smith: Yes, it must be a resource issue.

The Chairman: Can I thank you both for giving us the time today, and coming along, and also for your submissions as well. 1015 If, following today, there is anything you wish to add please get in touch with us and put those in writing. On behalf of the Committee I thank you for coming in this afternoon. So, this is the end of this public session now and the Committee will sit in private.

The Committee sat in private at 3.58 p.m.

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13th June 2014 Evidence of Mr Frank Hanna, mediator

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T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G V E A Y N T I N V A A L

P R O C E E D I N G S D A A L T Y N

S E L E C T C O M M I T T E E O N T H E C A R E A N D U P B R I N G I N G O F C H I L D R E N ( P E T I T I O N F O R R E D R E S S )

HANSARD

Douglas, Friday, 13th June, 2014

PP2014/0092 CUC, No. 5

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2014

129 SELECT COMMITTEE, FRIDAY, 13th JUNE 2014

Members Present:

Chairman: Mr J R Turner MLC Hon. P A Gawne MHK Mrs K J Beecroft MHK

Clerk: Mr J D C King

Contents Procedural ...... 89 EVIDENCE OF Mr Frank Hanna, Mediator ...... 89 The Committee sat in private at 11.53 a.m...... 105

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Select Committee of Tynwald on the Care and Upbringing of Children (Petition for Redress)

The Committee sat in public at 10.30 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR TURNER in the Chair]

Procedural

The Chairman: (Mr Turner): Good morning. Welcome to this public meeting of the Select Committee on the Care and Upbringing of Children. I am Juan Turner MLC, I chair this Committee. With me are the Hon. Phil Gawne MHK and Mrs Kate Beecroft MHK, and our clerk is Mr Jonathan King. 5 Please ensure that mobile phones are switched off here in the Chamber, and not just on silence as it interferes with the Hansard and the internet feed. Also, for the purposes of Hansard I will just remind, including the Committee, that we do not wish to have two people speaking at once. The background to this Committee: we were established by Tynwald on 10th December 2013 10 and it was resolved on that date that a committee of three Members be appointed with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to consider and report to Tynwald by June 2014 on the Petition for Redress of Mr Philip James Walmsley presented at St John’s on 5th July 2013, seeking a review of the law relating to the care and upbringing of children, especially in cases of broken marriages and other 15 relationships. In accordance with the Standing Orders we have heard evidence from Mr Walmsley but, given the subject matter of his petition, we did hear that evidence in private. Today is our fifth public hearing. We have heard oral evidence in public on Friday, 7th March; Monday, 31st March; 20 Wednesday, 7th May; and Wednesday, 28th May. I did mention in there that we were due to report to Tynwald at the June sitting. The work of the Committee is ongoing so I will be making a statement to explain that we are not quite ready yet to do that and we hope to be reporting in due course.

EVIDENCE OF Mr Frank Hanna, Mediator

Q198. The Chairman: At one of our previous meetings on 31st March, we heard from Mrs 25 Tina Hall, a mediator. She explained to us the current arrangements for mediation in the Isle of Man. A member of the public who heard that evidence, Mr Roger Tomlinson, wrote to us and suggested we contact Mr Frank Hanna and Ms Nancy Peterson, internationally renowned

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mediators, resident in Port Erin. Mr Tomlinson thought they could provide us with a broader 30 perspective about the important issue of mediation and conflict resolution. So I am grateful to Mr Hanna for joining us here today. Mr Hanna, as you can see we are in a public session and it is also live on the internet. If there is anything which you would prefer to say to us in private you are welcome to stay on after the session, if there is anything which you wish to discuss. But if you do, the microphones do remain 35 on and the transcript is made for the record. So, again, thank you for coming to see us, and welcome. First of all, for the record, if you could just state your name and outline your experience of mediation.

40 Mr Hanna: My name is Frank Hanna, I am a retired solicitor. I practised in Belfast in Northern Ireland throughout the totality of the ‘Troubles’, as they are known. During the 1980s and into the 1990s I became, I think, somewhat disillusioned by the way issues got resolved within the legal profession and contemporaneously with that I was spending some considerable time in America on a committee that I was a member of. I learned in the late 1980s and early 1990s 45 about the development of mediation as it was happening in the United States, and I got very interested in it and I thought it was very appropriate to the situation as it was. It did not take me very long to realise that mediation was, in fact, the future – and that is how it has turned out to be in the United States of America. My passion for it was such that I took time out from my practice in the early 1990s and went 50 to Harvard Law School to look more closely at it. It piqued my curiosity. I subsequently went to another university in California, in Malibu: Pepperdine University. Harvard and Pepperdine are probably regarded as the top two schools in the world for mediation studies. That equipped me in such a way that I wanted to pursue it because I thought it would develop into the way the future of the legal profession would work in the UK and in Ireland. 55 I had the opportunity, because my son was part of my practice, to take early retirement from my law practice in 1999. I went to the United States, and by that stage I was with my partner, Nancy Peterson. We settled in Arizona and my purpose was to expand my experience and knowledge of mediation. I did that, and I joined many volunteer organisations just to understand and learn more about it. 60 I was then approached by the United States government through their Equal Employment Opportunities Commission, as they were running a mediation pilot scheme for discrimination and workplace mediations. They asked me to participate in that, and I did. That pilot scheme lasted six months and was regarded as a great success. The government then decided to introduce it across all the states in the United States – 65 which they then did. They wanted, apart from staff mediators, independent contract mediators. They had two vacancies for the south-west states of the United States – that is Arizona, Nevada, New Mexico and Utah. They advertised for independent mediators to apply for these two positions. I applied and was successful. From the year 2000 until I left the United States in 2006 due to ill-health, I mediated on a 70 daily basis and a weekly basis for that particular programme which, I think it is fair to say, is probably regarded as the most successful mediation programme in the United States of America. And that probably means the world. The success ratio of mediations within that programme were in or about 90%, 91% or 92%, which took a huge burden off the court systems. I should say that my own personal success rate 75 was 93%. In 2003 I was approached by a group of people and asked to let my name go forward as a candidate in an election for the presidency of the Arizona Dispute Resolution Association, which is the governing body of mediation in the state of Arizona. I allowed my name to go forward and was elected president, and became the first elected president in the history of the state. I 80 remained president for two years and during my presidency I introduced two major schemes

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throughout the state of Arizona: one was peer mediation in schools and the other was community mediation throughout the length and breadth of the state of Arizona. As well as that both Nancy and I were given the contract of installing a peer mediation programme within the city of Phoenix, within the city of Mesa, within the city of Chandler, and 85 within the city of Gilbert – different states. So we taught and trained mediators and we installed systems which continue to this day. In fact, just within the last couple of years we were brought out again because through retirements and people leaving and moving, the mediator pool had depleted. They brought us out and we trained, I think, two consecutive courses. We trained 40 new mediators, which will keep them going for some time. So those programmes run very 90 successfully. In addition to that we were employed by many different companies to install peer mediation programmes within the actual companies themselves, so that organisations could deal with conflicts rather than have to call in lawyers all the time. Again, they work very successfully and have done. 95 My partner, Nancy Peterson, was subsequently appointed as the Director of Education for New York State Dispute Resolution Association – NYSDRA, it is called – and she had the responsibility of developing educational programmes throughout the state of New York. She held that position for two years and resigned that position to return to the UK with me, again which was a health thing. 100 That pretty much brings us up to date.

Q199. The Chairman: Well, thank you for that very interesting background and an outline of your experience in mediation. Obviously we want to explore… you have sent us a submission, we want to explore mediation in the Isle of Man and the experience that you have of it and your 105 comments. We have got until just before 12 noon to do that so without further ado I think if you do not mind we will get into the issues here on the Isle of Man. It may be worth mentioning: how did you come to the Isle of Man?

Mr Hanna: Well, in 2007 – and it is quite an amusing story – I got a call from the Positive 110 Action Group, who were keen to know more about mediation and I was asked if I would come and give a lecture on mediation. At that point we were living in Belfast, and we still have a home in Belfast. At the airport on the way across to the Isle of Man – my partner Nancy had never been to the Isle of Man – I said, ‘You know the problem with this trip is that once you see the Isle of Man you will fall in love with it and you will not want to leave it.’ We laughed at that, but 115 in reality that is exactly what happened – and that one trip was instrumental in us buying a home in Port Erin which we have enjoyed ever since. In terms of mediation in the Isle of Man, apart from that, I have given a number of lectures, I have assisted the Government in a whole variety of different ways and disputes and what have you, and I have made my views known about what I feel that mediation should be in the Isle of 120 Man. I would like to think that I had spelled out the problems and the mistakes that it is likely that organisations will make – and I suspect from everything I have heard that a lot of those mistakes have, in fact, been made.

The Chairman: Okay. 125 Mr Gawne.

Q200. Mr Gawne: Just on that, because I remember when you first came over – I am not sure if I attended the Positive Action Group meeting – but did you give a presentation to Tynwald Members? (Mr Hanna: I did.) Yes, I remember that and remember being inspired and thinking, 130 ‘This sounds really good.’ Then it seemed to disappear off and nothing seemed to happen. So it would be interesting, I think, for me to know what actually happened and why you think that we did not make the progress?’

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Mr Hanna: Well, I mean I would be very interested too. I do not know: somebody said to me very knowingly, ‘It is not what you know, it is who you know.’ And I believe maybe there were 135 people who were more connected than I was. My passion – and I want to make this absolutely clear, I have no criticism of anybody who engages or seeks mediation as a solution, it is very powerful. It is a much maligned skill set and I do not think people fully understand just how powerful it is, and the extent of it. To put it in very blunt terms it brought peace to Northern Ireland and to many other places too – and the same 140 set of skills that brought peace to Northern Ireland are the same set of skills that I am talking about.

Q201. Mr Gawne: Did you actually speak specifically to anybody in Government when you were trying to – ? 145 Mr Hanna: I believe there was a tender, we made submissions and what have you, but… If I could make one point, sir, it is hugely important and it is a mistake that has been made throughout the United States, throughout everywhere that tries it, people latch on to mediation and dig into it. It tends to get hijacked. But for mediation to be pure it needs to be independent; 150 it needs to be independent of government; it needs to be independent of the legal profession. It simply needs to be independent, so that the public learn to trust it because of its independence, and do not see it as a wing of government, do not see it as another tool that lawyers use. I am a lawyer myself, I know exactly what I am talking about, but the reality is that the legal 155 profession do tend to get a grip on it and use it when they feel like it.

Q202. Mr Gawne: So how do we make it happen, I suppose, is the thing? Bearing in mind that you have got a system in place already which is that legal system for most of the… well, certainly in the specific area that we are looking at, we are looking at how the 160 courts deal with disputes in relation to children. So how do we overcome the system that we have, to introduce the system that you are talking about? I presume that you would still need to have some kind of court system in place in the cases where mediation would not actually work, but … do you know what I mean – ? 165 Mr Hanna: I know exactly what you mean. Can I answer it in a slightly roundabout way, and I do not mean to be obtuse, I am trying to make this as clear as I possibly can. Let us say for the sake of argument you have a large company, a major multinational 170 company, that has a base here. They decide, ‘We want to have a peer mediation programme within our company so that we can deal with conflict as it happens.’ And they approach me, or they approach my organisation and say, ‘Well, how do we do it?’ And I say, ‘Okay put me in touch with who you want to be in charge of it.’ Invariably they will send the HR Department – invariably. And the first thing that I will say to 175 them is, ‘You are the last people I want to talk to’ – because the perception of the HR department is that they are management; they are the people who determine right and wrong; they are the people who punish. That is the perception of the public. So, whatever the establishment is, it has to be apart from that so that the workforce can look at this and say, ‘I am confident with that organisation because it is not part of management, it is 180 not a wing of the company, it is not just another tool that the company uses.’ So it has to have that level of independence. Now, take the Isle of Man, for example. It is really quite simple. What I believe should happen, and again it is just my opinion, is that there should be established – and I did notice that the evidence of the mediator, Mrs Hall, earlier on, said

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185 something very similar to this. There should be an independent building somewhere, a mediation centre, where people can come to, people off the street can come to. You see, there is nowhere on the Isle of Man. If you have a row with your neighbour there is nowhere to go on the Isle of Man. I get phone calls… I got a phone call last week from somebody on the Isle of Man who has got 190 a problem with his neighbour. But there is not anywhere that is a central base that people can go to.

Q203. Mr Gawne: So, effectively, what we do have in the Isle of Man – I do not know if you are aware – we have the Industrial Relations Office and they manage disputes between 195 Government and unions, or unions and employers. But I am not sure there are any other examples of that really. There may be one or two, but it is that kind of thing, it is the Industrial Relations Office that does sit outside of Government. I think it is funded by Government but it is, I think, trusted by both sides, trusted by Government and by the unions to reach that right conclusion. 200 But you are talking about a much broader thing for everybody who has this –

Mr Hanna: What I am suggesting is that this should become… ultimately, and I think probably ultimately it means within about two years, this could be self-supporting. Ironically in 2007, or whenever I came over to speak for the Positive Action Group, they had 205 me record a video which is on YouTube, and I say exactly this in that video. I believed then that the Isle of Man could have led the way in Europe, in mediation. What I perceived then was –

Q204. Mr Gawne: And could we still?

210 Mr Hanna: Still? It is a lot of time wasted. I envisioned a mediation centre where people could bring their problems to, where mediators could be trained, where a standard could be set, and where a standard could be maintained. Where eventually it would develop into an Academy which would form a reputation where people would come to the Isle of Man to learn. 215 That was the vision that I had, and it still holds good to this day. There is nothing like it, and that is why I said the Isle of Man could lead the way in Europe. Loads of places are like it in the United States: each different state in the United States has their own centre and their own organisations. They are accredited and they are recognised by the public – and trusted by the public. 220 Q205. The Chairman: Yes, and – just before we go to Mrs Beecroft – how are those centres funded in the United States?

Mr Hanna: Probably in the initial stage by the local city, the local government and they would 225 do that simply by providing the premises. The vast majority of people – and this defines the purity of it – are volunteers. I spent my first year, two years maybe, in the United States doing mediation after mediation after mediation. Absolutely free: pro bono. You would go down to the court system, all the court systems had mediation systems which are peopled by volunteers. And I would go down… this seems like a staggering thing to say but it 230 is true. On two separate occasions I actually did four mediations in the one day, because I went at eight o’clock in the morning and made myself available. The courts would say, ‘Has this been to mediation?’ and refer it to mediation. We would go down the hall and we would mediate – and you would mediate until it was finished; and if it finished quickly, moved on. 235 Whenever I say that mediation just is not understood or really known… whenever I was asked by the cities of Gilbert and Mesa and Phoenix to teach, I actually took six weeks off and sat down

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to think about whether I could do it or not. I asked myself a question – this sounds very theoretic in many ways – but it is true. I asked myself the question, ‘What do I know about mediation?’ My answer was very clinical: was I a mediator because I had been a solicitor? No. Was I a 240 mediator because I had been to Harvard? No. Pepperdine? No. Many other courses? No. I was a mediator – and I was a good mediator, a skilful mediator – because of experience; because I had been there and done it; because I had looked into people’s eyes, I had seen their reactions, I had learned. I learned the hard way, I learned at the coal face. That is what made me a mediator – and that is, I think, what the Equal Employment Opportunity Commission saw in 245 me, was that someone who had taken that. That is where I believe the weakness in the UK, and in Ireland, and in the Isle of Man is: that people just do not have experience, and they do not have a route to get experience. What I was proposing in terms of a mediation centre would go a long way to curing that.

250 The Chairman: Mrs Beecroft.

Q206. Mrs Beecroft: Yes, thank you I have just a few questions, but if I could give you them all at once because I think you can probably roll them into the one answer, rather than keep coming back to you. 255 You have mentioned Harvard and Pepperdine: did you actually attend a full-time course there? Is it a degree in America? Or how does it work there? You say that now there are new courses for mediators. How long are those courses? What is the depth of them? Do they actually specialise? Do you get mediators in the States that specialise in family matters, as opposed to different things? Are you just general mediators or 260 has it come to be a speciality? Then coming back to the Island: how would we get the level of experience here that you are talking about, even if we had the same standards of the courses and all the rest of it, because I think you said 40 hours was not really enough in your submission for just even the course itself. But even if we had the extended courses, how would we get the experience here if we do not 265 have the number of cases? I hope that is not too many is it, all at once?

Mr Hanna: No, that is okay. First of all, in terms of Harvard and Pepperdine: the courses are substantial, they are not 40 270 hour courses, they are month long courses, and they would be spread over two or three different periods of time. I went beyond that: I carried on with my studies and eventually I wrote a thesis and I got a doctorate in mediation from the Graduate Theological Foundation in Indiana. I wrote a book on the subject called ‘Conflict Resolution and Mediation in the Real World’, and that was my thesis 275 for my doctorate. Getting to how you would get the experience: what happens in the United States is people go on a course which a lot of organisations call ‘basic course’, which offends me greatly because you never hear of a basic doctor, or a basic lawyer, or a basic architect, so why should you have a basic mediator? The idea of that initial course is to learn about the theory or the academic side 280 of it. What I did whenever I was training in the States, I introduced something entirely different into the way that was taught, by introducing actual mediations role plays. All courses do role plays but these were different role plays, these were actual cases and they were very complicated cases, they were deep-end cases. The people on the course would be given their 285 details and they would be asked to go away and think about it overnight, and come back in and be that person, and just do whatever they felt like doing – in other words, be themselves. So they were not playing a role, they were playing themselves within a role, which is a very powerful way. The mediation experiences were very powerful and very valuable. Everybody on

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my courses… nobody leaves until they have actually mediated one of these on three different 290 occasions. Now, what we have done over there and what we would do here if it came to that, would be to have this centre where people would come and maybe two, three, four days a week we would have experiences like that where actual mediations would be played out. Not people acting, but people being themselves, so that you could see… 295 The class that I taught here, I have a CD at home which I could show you – it would be quite interesting – of such a mediation taking place, where two of the qualified mediators that you have been talking about within the Isle of Man are actually participants. I trained two of them and they are actually participants in this role play, and it is very powerful. The experience teaches people, and it teaches people to have confidence – and as that grows and word spreads, 300 people will come to it. Being a volunteer organisation it has a credibility and we make sure that it does not become the touchy-feely kind of thing that a lot of people think that mediation is. We make sure that it is hard-bitten and hard-edged and that it deals with problems, and we carry that on. I noticed the organisation in England, ‘Family Mediation’ – I have forgotten the precise name 305 – I noticed one of their continuing professional development points is that they have to do 10 hours a year. To me it would be more like 10 hours a week to get people to the level that they should be at. I simply believe that with a passion.

Q207. Mrs Beecroft: Sorry, my fault, I did give you too many questions at once. 310 The one that you missed was: do you have specialist mediators now?

Mr Hanna: People will drift into mediation within their own field. I have trained mediators in the United States. I have one hugely successful person who was an airline pilot and he was laid off, and he now probably does extraordinarily well resolving airline disputes among staff. And 315 why would they look to him? Because he is credible, because he knows, and he has got what I would call a niche market. I have another two people in Indiana who run the most successful ‘elder mediation’ programme in the United States. They are not lawyers, but they have experience of working with older people – and their websites, if you look at them, you can see them. Again, they were 320 graduates of ours. People in the human resources side of life come in, who use the skills that they have to make their work in human resources a lot better –

Q208. Mrs Beecroft: So the training would not actually target people to a certain area? That is something that would develop because of their own natural inclinations afterwards, is that it? 325 Mr Hanna: They follow their own skills.

Mrs Beecroft: Yes, thank you.

330 Q209. The Chairman: You have obviously explained the importance of experience and the number of cases, so part of my question you have answered. But what is your view on the way mediation is used in the Isle of Man, and how is it different apart from what you said about the number of cases? And if I may link on to that: the Isle of Man has adopted an English-based accreditation 335 regime. Do the weaknesses you described apply to England as well as the Isle of Man?

Mr Hanna: One thing that I omitted – Ireland, England, Isle of Man – I was invited about four or five years ago to join the board of the Irish Mediation Association, which I did, I was happy to. You have probably gathered by now that I say what I mean and I mean what I say – which I did 340 when I was on the board. Eventually I began to realise that I was part of a board which was

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making the exact same mistake that I was talking about, and the whole process was being hijacked by the legal profession. I made it clear that I was not prepared to stay at that, and they tried to talk me out of it, but eventually I just resigned, on principle. Again, ask yourself… stop somebody in the street and say, ‘What do you know about 345 mediation?’ Invariably they will say, ‘That is something that you get either through the government or you go to your solicitor or you can go to your advocate.’ That is the identity. If you are in the United States of America and you ask the same question, you get an entirely different answer. You would be directed to somewhere where there are no lawyers involved, there is no money involved, and you get answers. 350 Q210. The Chairman: You mentioned a bit earlier that there were cases where the court would actually say, ‘Have you done mediation? No? Right, we are sending you down there.’ Is that almost like a compulsory…? Because we have had a discussion about mediation and whether it can be compulsory and there was a view, I think, given to us, that, ‘Oh, you cannot 355 make it compulsory, it has to be voluntary.’ What would you say to that?

Mr Hanna: I think both of those points make the point for me, that it is not understood. A mediation should be desired by people, not forced into it. Ideally people go to mediation 360 because they want to go to mediation and want to get resolve. But here is the point: the experienced mediator will know within minutes whether or not… and the word ‘compulsory’ is not the relevant word, the word is ‘good faith’. That is what mediators are interested in: whether or not the parties have come in good faith. And an experienced mediator will spot that within minutes. 365 Q211. The Chairman: You will obviously know why our Committee was formed and you have had an opportunity to read the petition. What we are obviously looking at is disputes where we have children in a broken relationship and the parents are fighting over the children. Most of that – we have found in the evidence we have had – is actually not connected with 370 the children, it is the war between the two parties. One of the suggestions is that because of the cost of going to court, the unaided party is saying, ‘Mediation should be compulsory because I am being taken to court by my partner; my partner is legally aided; I cannot afford it; therefore I do not want to go to court, I want to try this.’ 375 So how do you deal with one of the parties who is saying, ‘We should try mediation’. The other party does not want to do it because they are being funded to go to court, so they can do that anyway, and there is always that argument that because the other person suggested it they do not want to know it. They seem to see that there is a game on here. So how do we deal with getting over that hurdle to try and change that message? 380 Mr Hanna: Let us say that you had the idea that I proposed earlier on, that you had a mediation centre which was funded. That would be voluntary, and whoever was in charge of the mediation centre… they would not just liberally give a volunteer mediator. Mediators would be picked because they were appropriate and because of their skill set. 385 I think the notion should be that is a volunteer programme and that people… The reason why I say that is you get people who want to be mediators for the right reason. As things stand at the moment if you go on a course and you get a certificate in mediation, there is nothing whatever to stop you from coming to the Isle of Man, or going to Belfast, or London, or anywhere and putting a notice up on your door saying ‘Professional Mediator’ and charging £500 an hour. 390 Nothing to prevent that. I think I raised the point in my submission to you: do they have insurance cover? Do they have professional indemnity?

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Does anybody know the damage that a bad mediator can do? The answer is that bad mediators who fail in mediations come away blaming the parties, and the parties go away 395 blaming each other still.

Q212. The Chairman: We are dealing with an investigation here where we have clearly got an issue between the parties, and you were saying there is a lack of understanding of what mediation is and maybe this is part of the problem. 400 How do we move to a model where we get some of these cases out of court? I am trying to explore the whole compulsory/voluntary side of people attending mediation. Can mediation be made compulsory? Let me just explain this in a different way: if we were to say, for example – and I am not trying to pre-empt what our report is going to say – we recommend that in family matters you 405 cannot attend court until you have attended mediation, or at least attended initial sessions. Does that go against the spirit of mediation or is that a possible solution we should be exploring in our report?

Mr Hanna: I will give you an example: in most states in America if you go to court and you 410 lose the case and you want to appeal, you have to go to mediation before they will allow you to go to appeal. If you go to mediation and you still then go on to appeal and it goes to the Supreme Court, you have to go to mediation before it can go to the Supreme Court. So at every step of the way mediation intervenes. It is not regarded as compulsory, it is just a step that is exploratory more than anything else. 415 The interesting point from a court’s perspective… let us say that you have this independent body, this independent mediation centre, and the court says, ‘Has this case been to mediation? No? Let it go to mediation.’ The report from the mediator to the court will be of great assistance to the judge because it will say, ‘We tried, we failed’; or it will say, ‘One of the parties came in good faith, the other one 420 did not.’ And that would be telling to the judge as well.

The Chairman: Okay. Mr Gawne.

425 Mr Hanna: I do not think the word ‘compulsory’ is really appropriate.

Q213. Mr Gawne: Yes. One of the disadvantages, I suppose, of being a politician is you have to be a bit pragmatic and you have to look at the practicalities. I just want to wave a magic wand and walk out of this 430 meeting and find that we have got a mediation centre down the road and it is working in the way that you suggest. But that is not going to happen because I do not have a magic wand. So I am trying to understand a bit better about the practicalities. One of the things that springs to mind is this ‘chicken and egg’ thing. Which comes first, the 435 mediation centre or the cultural change? It sounds to me as though you need a cultural change in understanding about what a mediation service is before you have your mediation centre; but until you have got your mediation centre, you are not going to be able to get that cultural change. Or am I over-complicating it? 440 Mr Hanna: The mediation centre is a room. It is a place. The most expense that the Government would have initially would be publicity to make the public aware – and make it aware that here is a place where you can go to have issues resolved.

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You mentioned about mediators. I have run, I think, two or three training programmes. There 445 are very good mediators on this Island who have never done a thing. You mentioned at the beginning Roger Tomlinson that referred to… Roger is a trained mediator. There are other people who came and were educated. Here is one very interesting point: the first case in the Isle of Man that I was asked to look into was a very similar case about a broken relationship and child custody. Unfortunately, we uncovered a few things that were 450 not terribly happy. The husband in that particular case – this was back in 2007 – was so impressed with the mediation process, that subsequently he contacted us to see what would happen… how he could learn more about mediation. He eventually became one of the participants in the class and he is a qualified mediator. He does not live in the Isle of Man today, but he is a qualified 455 mediator.

Q214. Mr Gawne: So, basically what you are saying is we would have to do a fair amount in terms of explaining to the public what this new mediation service actually was, if we were to make it work. In the first instance anyway, it is getting the message out as to what you are trying 460 to do for a mediation service?

Mr Hanna: And I think also people should be made aware that you do not have to be a doctor, you do not have to be a lawyer, you do not have to be anybody in particular to come and be a mediator and to learn about mediation. We would happily run courses for people as close 465 to being a volunteer-type of thing as possible, just to help develop the interest.

Q215. Mr Gawne: And then, of course, going back to practicalities again, I suppose there are two questions: why would anyone volunteer to be a mediator? And how would they live if they were volunteering rather than being paid to be a mediator? 470 Mr Hanna: There are a lot of people not working at all; a lot of people who are intellectually curious. That is the price that you pay. That is the price that I have paid. As I say, I spent maybe a year or two years, getting up early in the morning and going down to courts, and hanging around waiting for mediations. 475 The programmes that we taught in the United States of America, people travelled from all over the place. A minister in the British government came out and attended our course, and went down and sat in the courts the way I did and did a lot of volunteer mediation just to learn, just to know. That was Sir Nicholas Bonsor.

480 Q216. Mr Gawne: Right, okay. So – (Mrs Beecroft: Sorry… ) I know, I have got a list here… As someone who has regularly set things up and believed that people will come, effectively, that is what you are saying here, aren’t you, that we have got to have a bit of faith that the service is going to work and that we will attract volunteer mediators to make it happen? 485 But you have also mentioned that you would be picking who would be the best mediator for which particular case. Presumably you would have to pay somebody at some point to administer all this, would you?

Mr Hanna: Yes, you would imagine so, but again… I was President of the Arizona Dispute 490 Resolution Association and nobody paid me a penny. I ran the state-wide... To put that into perspective: Phoenix metropolitan area has a population of 4.6 million. So 84,000 is not a huge amount. There are people… I know people who would love to be involved.

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495 Q217. Mr Gawne: I am trying to get my head round this… Effectively, what you are saying is that the centre would provide people with the experience to allow them to develop their skills as mediators, which means that in their professional lives they could potentially hire out their services as professional mediators and make money that way. Is that a possible scenario here?

500 Mr Hanna: The purpose of the centre would be to elevate the credibility of mediation, to elevate the standard of mediation, to promote the public interest of mediation. At any stage anybody can drift off and open their own business, and that is the way things happen. It might well be that if a particular case came in, you would refer it to somebody who is now a professional and doing their own business. But they would be a proper professional with proper 505 professional indemnity insurance cover and properly set up as a business – but with the experience.

Q218. Mr Gawne: Yes, I am trying to understand how this works because I think it sounds like a really good idea, it is just how you make the idea happen. 510 I could see potential conflict between people who say, ‘Right, okay, I am going to become a professional mediator; I am going to go away; I am going to spend years training; I am going to get all this experience’. Then they come back to the Isle of Man and there is a volunteer-led service down the road and they do not get any money – because why would you pay to get mediation if you can get it for free? 515 So is that a conflict?

Mr Hanna: Not necessarily, in every city in the United States there are volunteer mediation programmes and there are professionals.

520 Q219. Mr Gawne: Would the volunteer programme tend to be for the people who can obviously not afford to pay for mediation? Is that how it works?

Mr Hanna: The volunteer programme would be people who are probably on the learning curve. 525 Q220. Mr Gawne: Right, but I mean in terms of clients, are we talking about people who would not have the financial ability to pay?

Mr Hanna: Again, you would have someone like me, or someone like Nancy, or some director 530 who would filter. So if a serious case was referred from a court you would not give it to… obviously, you would be discerning about that.

Mr Gawne: Yes, okay. Thanks.

535 Q221. Mrs Beecroft: It is just picking up on a point… I can understand the voluntary thing, but I am sure it cannot be just for people who are not working. People who are working, I am sure, would like to be able to volunteer their time, as they do to lots of other things. So they might say, ‘I can give a Thursday afternoon or a Friday morning, or whatever, and still retain my profession to carry on making money, because I still need to make money.’ 540 But when you start mediation you carry on until it is finished, there is no cut-off time. You cannot say, ‘Well, my Thursday morning or Friday afternoon allocated slot is finished now.’ You have got to keep going. So how would you deal with that on a practical level, if somebody said, ‘Well, I can volunteer on a Thursday morning’, and you allocated them a case, but that was running on? 545 Would they have to be prepared just to wait until it was finished if they are volunteering? Is that how it would work?

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Mr Hanna: If you undertake something, you do it. To pick up on what you said earlier on, people have to do their work and do not give up. You would be amazed. 550 Comparatively recently I had an approach from a young lawyer in the Isle of Man who wanted to know when I was next teaching in the United States so that she could come over and attend that course, and go and attend some court mediations. It was someone has heard me speaking in court, I had no idea who she is, it is all done on e-mail. But it is not the first time that has happened. The Head of Daytime BBC in London came to 555 Arizona to do exactly this; a lot of other people travelled from the UK to do exactly that, sit and understand and learn about it. One of the things that – and, again, I stress please do not take anything of this as being critical of anybody – but when I read in your report about some reference to an hour and a half mediation session, that just grates with me. Mediations last as long as they last and if you sit 560 down with the notion that, ‘Let’s have an hour and a half worth of mediation’, it is contradictory. I had a personal experience, once upon a time… Professional mediators do not as a general rule co-mediate, and co-mediation is used to help to teach and develop people. I had an experience in America where a lady came in and sat down, it was a very involved case, very tricky, very emotional case, and at one stage this lady interrupted and said – this is the mediator 565 – ‘Come on now, I have to hurry you along because I have got to pick up the kids at 3.30 p.m.’ Can you imagine that? By putting time limits or suggesting time limits, that is devastating. And that is experience and knowing. She did not think she was doing anything wrong – in fact she probably thought she was helping the process along. It is very hard to know.

570 Q222. The Chairman: I just need to explore the funding element a bit more because I do not think we are entirely clear on the funding mechanism. You said about it becoming self- supporting… In terms of our brief we are looking at, particularly, family matters. If there was a facility established where people could go, would it be the parties that attend 575 that would pay for the mediation session, or are you envisaging that would be provided free of charge?

Mr Hanna: That really depends on whether or not the Government wanted to put any money in it. If funds were required other than for the rent of the accommodation and the furnishing of 580 the accommodation, it might well be that you might charge some amount. But sitting here I would hate, I would absolutely hate – and I would rather not practise on this basis – to think that anybody who was in need was deprived because of lack of money.

Q223. The Chairman: I think this is part of the problem that we are trying to address: the 585 issue of legally aided parties and non-legally aided parties in the court process. We are getting more campaigning from the non-legally aided parties to say, ‘We want to go to mediation.’ That is why one of the suggestions possibly is they will not get their legal aid to go to court unless they have been to mediation – that brought us back to the argument we explored before about compulsory versus voluntary. But there is also, I understand – and I will just check with 590 the Clerk – that legal aid can be used to fund mediation?

The Clerk: Yes.

Q224. The Chairman: We have a case where at the moment mediation is being charged for. 595 So it is whether the model would be almost like a citizens advice bureau where you can go and get a level of free advice – in this case the parties can turn up.

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But surely there is a cost and the idea is to make the cost affordable rather than the huge costs of a court case. So there are models where the parties who attend pay and there are models where they do not pay. 600 Have I got that right?

Mr Hanna: Absolutely.

Q225. The Chairman: And it would be up to us to find the best model for our community? 605 Mr Hanna: Well, yes, there is a lot of talking and thinking to be done about things like that before we would get to that stage. One of the things… I can give you an example… one of the problems I have with cases like this is co-mediation. Co-mediation means two times the fee, generally speaking, but co-mediation is 610 terribly difficult –

Q226. The Chairman: Sorry, co-mediation: is that where each party has a mediator?

Mr Hanna: No, it is when there are two mediators. 615 Q227. The Chairman: You explained that there may be two because one is in training?

Mr Hanna: Co-mediation is where two mediators work together.

620 Q228. The Chairman: Right, not necessarily in training?

Mr Hanna: No, the model that Mrs Hall describes in her evidence is co-mediation. Personally I would never do that. Before coming to this meeting, in the last couple of days I contacted two colleagues in 625 Arizona, both are retired judges, both professional mediators. I asked a simple question. I said, ‘Are there any circumstances where you would ever use co-mediation in a professional mediation?’ They both emphatically said, ‘No.’ And neither would I. It is too dangerous, it is too difficult. 630 Q229. The Chairman: So what are the drawbacks?

Mr Hanna: Well, first of all it is confusing to the parties: they come in, they see two people, and invariably you will have, ‘Are you mine?’ or, ‘Which one do I get?’ 635 It is confusion. Secondly – it is very hard to say this, but it is true – it is a battleground for egos. Mediators get involved, they both want to be the one that cracks it, they cut across each other. You will have, for example, a mediator going off on a particular line of thought. It is like a lawyer: a lawyer will start a questioning process here, but the answer he is looking for is down there. Well 640 if you have got somebody who interrupts in the middle of that… that is what happens all the time in co-mediation. Again you have mediators who give up more readily than others. Before co-mediation, mediators should meet the day before and devise a strategy. One of them should be a leader and the other one should be an observer, or what have you. It is too complex and too confusing. 645 Q230. Mr Gawne: Bearing in mind what you have been saying, really, about setting this mediation centre up. What would stop you just doing that anyway? What would you actually need from Government?

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Mr Hanna: Approval. 650 Mr Gawne: Right, well that should not be too –

Mr Hanna: Support, publicity, encouragement – all of those.

655 Q231. Mr Gawne: And what, tangibly, does that mean?

Mr Hanna: You will notice I did not say money. That is what it means: support means a government wanting… I would love the Isle of Man to be a model for Europe. I would love people to come, and I 660 would see it developing this way. I would see it becoming a place where people came to learn. That is how I would see it develop and I would see that develop, not over decades, but over maybe two or three years.

Q232. Mr Gawne: Well taking as read that I am already convinced and think it is a great idea, 665 what do I need to do to make this happen? (Interjection by Mr Hanna) Right! But in terms of me convincing others, I need to be able to say, ‘These are the steps that we would need to take if we were to make this happen.’ This person… I suppose that is the next obvious question then… would you be prepared to take this on and work with us to make it happen? 670 Mr Hanna: I was prepared in 2007 to do that. I wanted to do it and then I suppose… It was somebody who came to me and said, ‘It is not what you know, it is who you know.’ I thought, I just do not want to be a part of that, I have spent a lifetime contesting those sort of things. 675 Q233. Mr Gawne: I know there are people who believe that is how Government and how society works in the Isle of Man – and then there are others who do not. I would probably count myself in the, ‘I do not believe that so much.’ Or, if it is happening, I believe we should still continue to battle through it and make it happen the way we would want. 680 So, on that basis, assuming that the Committee decides that we want to recommend that a mediation centre is established, without wishing to pin you down, do you think that we would be able to find somebody who would work with us to make it happen?

Mr Hanna: Absolutely, absolutely. 685 Q234. The Chairman: Can I ask a further question about… We have a situation where – and most of the representations come from fathers who are not legally aided – there is free access to legal aid, as I outlined earlier, to certain people with regard to family matters. 690 Would it be appropriate for us to consider changing the law so the law provides that, certainly in these cases, they must attend mediation? How does the outcome of that become binding? And would it go against the principles of mediation if the parties were refused court, went to mediation, came up with a solution to that, and then one of the parties reneged on that. Would it go against the principles if they were then 695 refused any further legal aid to go to court because they had taken part in the process, agreed, and reneged? Or would that go against the principles of mediation?

Mr Hanna: No, it would not go against the principles of mediation. Let us say, for the sake of argument, that in my vision people would apply to court, and court would say, ‘Have you been 700 to mediation?’ ‘No.’

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Then refer to the mediation centre.

Q235. The Chairman: And they will not entertain it until, that is where the court process they say – 705 Mr Hanna: That is the way it happens in America: ‘Has this case been to mediation?’ Down the corridor… And you would have your volunteer mediators. Part of… it is what the mediators here call ‘an intake meeting’ – I think that is a bit grandiose – mediators will sit down with people and explain to them exactly what mediation is, and 710 thereupon they enter into a mediation agreement. The agreement is a legally binding agreement which says, ‘We will take part; it is confidential; we are here in good faith; and we make various promises about violence and… standard agreements. Then a mediation takes place, and that mediation will either lead to one of three things: it will lead to a failure to agree; it will lead to an agreement in which it is recorded as a legally 715 binding contract; or it will lead to a report from the mediator which says, ‘I spent two and a half or three hours, I found Party A very workable, very keen to resolve the issue. I found Party B obstructive, destructive, and I am satisfied he did not come in good faith.’ And that goes back to the judge. Then the judge comes to a decision; he knows a whole lot more about that case now than he 720 did before he started. He can then make whatever decisions about…

Q236. The Clerk: Sorry, may I come in, Chairman, on the three options, because that is very interesting. I noticed that there was not an outcome which said, ‘Both parties are here in good faith, but 725 we have not reached a resolution.’

Mr Hanna: That was the first one I said.

The Clerk: Oh I am sorry, I missed that. 730 Mr Hanna: Yes, no agreement.

Q237. The Clerk: So, they did not resolve it, they did resolve it, or one party is not in good faith? 735 Mr Hanna: That is right: did not resolve it, did resolve it, or it blew up because somebody did not participate.

The Chairman: Okay. 740 Mrs Beecroft.

Q238. Mrs Beecroft: Yes, thank you. This is not specifically about mediation but, given the fact that you were a lawyer before, you may have an opinion on it. 745 We have been asked to look at cases where one party has legal aid and the other does not, because it is seen as a bit of an unfair playing field here at the moment, because the party who has got legal aid can do whatever they want knowing it is going to get paid for, and the other person may be just over the limit but really cannot afford everything that the party that is being state funded has access to. 750 It has been suggested to us as an area that we need to look at, that if one party does not have a lawyer, then the other person should not have a lawyer when they go to court, so that

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the legal representation is a level playing field. So if one cannot afford it, the person who is on legal aid does not get it either when they go to court . What would your feelings be on that? What is your opinion? 755 Mr Hanna: That is a very good question and the principle behind why you asked it in the first place is one of the reasons why I explored mediation as I did, because the inequality of the legal process and the legal profession, some of it had affected me quite dramatically – it is the law for the rich and the law for the poor. 760 It again comes back to experience. In the States you are entitled to have whoever you want with you, within reason, be that a family member, a friend, or a lawyer. Lawyers will come into mediations and will try to be lawyers, and try to take over. The experienced mediator knows exactly how to deal with that and will isolate the lawyer – not isolate him in a nasty way. I will give you an example of one of the ways that I would do it. 765 I would see, let us say, Party A and his lawyer coming in. The lawyer would immediately want to sit next you. I would, before anybody had any sense, have done my research and I would know who the lawyer was, I would know who his firm was, and I would shake his hand and say, ‘Ah, Mr Bloggs, how are you, nice to meet you, I have heard a lot about you, I have heard a lot about your firm…’ and I am moving him into the other chair. 770 Immediately I would turn to his client and say, ‘You are the lucky man to have this guy.’ So I am appealing to his ego and I am saying the right things to him. Then I say to him, ‘It must be nice for you to have a day off, sitting here, with nothing to do, just with your client… ’ and I’m talking to the client and I am telling the client… And in the space of two minutes I have put that attorney sitting there. I have appealed to his 775 ego, I have told him that he is not going to be required – and I have told the client it is all about him, and I have got him to sit beside me. It is a very smooth process. It takes years to learn I have to tell you, but it is very effective. That isolates without offending anybody.

780 Q239. Mrs Beecroft: Could I ask about the cases that actually proceed to court, where you are in a formal court situation. Would you be in favour of the level playing field? So if one person has not got legal representation the other person cannot have it either?

Mr Hanna: I think you are dealing with a constitutional matter rather than something – 785 Mrs Beecroft: Okay, it is just an area we have been asked to look at, and I am not –

Mr Hanna: It is a constitutional right, to have representation in court, and I think if there was any attempt… I think that would be dangerous. 790 Mrs Beecroft: Okay, thank you.

The Chairman: Well, we would like to sum up and conclude. So I will ask the Committee if they have any further points they might like to add. 795 Mr Gawne anything else… ?

Mr Gawne: No, just thank you very much for your evidence.

The Chairman: Mrs Beecroft? 800 Mrs Beecroft: No, thank you very much indeed. Mr Hanna: If I may… ?

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Q240. The Chairman: Yes certainly I will just see if – 805 Mr Hanna: It was just on the actual petition that you are faced with. I have come across this before. I fully appreciate this is one side of the story, but to my mind there is no suggestion of violence, there is no suggestion of unsuitability as a parent. I was shocked by this, I was shocked that a father was deprived of access to his child for as long as he 810 has been. There is something wrong somewhere and I do not know where you start looking to find out what is wrong but, again, that is with the proviso that is one side of the story. I was quite shocked by that.

815 The Chairman: Well, I think, a petition that comes to Tynwald Court has to convince Tynwald Court that it is worthy of investigation and clearly that is why we have been established. So thank you for your views on that. I will give you an opportunity just to give us a final thought if you like, but I will just ask Mr King: do you have anything? 820 The Clerk: No, thank you.

Q241. The Chairman: So, before we finish then, is there anything else you would like to add? Everybody else who has given evidence too, as I have always said to them, if after this session 825 there is something you wish to raise then please feel free to write to us and get in touch. But is there anything you would wish to add before we conclude this morning?

Mr Hanna: I think, from my experience, that a country benefits to an enormous degree by the proper, controlled use of mediation and the proper understanding of mediation. I have said 830 it already and I will say it again, mediation simply is not understood. The power of it is not understood; the techniques of it are not understood; the skills of it are not understood. And any professional process which enables people to spend a couple of weeks on a course and spend an amount of money and get a certificate, and then put themselves out there as 835 being professional people – there is something terribly wrong. If I felt that the Government was taking a very cold, hard look at that – do not take my word for it, there are plenty of other people have views – but it would benefit the Isle of Man enormously if they had such a facility.

840 Q242. The Chairman: Okay, thank you very much. Finally, you submitted a paper to us which we found most useful. Are you happy for us to publish that paper as part of the annexes to our report?

Mr Hanna: If, having considered everything, that is what you want to do, by all means. 845 The Chairman: Thank you very much. Can I thank you sincerely for coming in this morning and joining us. I understand you have had to travel, so thank you very much. That is the end of this public session, the Committee will now sit in private.

The Committee sat in private at 11.53 a.m.

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WRITTEN EVIDENCE

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150

Appendix 1 Children & Young Persons Act 2001, sections 1 to 3

151

152 Children and Young Persons Act 2001 Section 1

c i e CHILDREN AND YOUNG PERSONS ACT 2001 Received Royal Assent: 10 July 2001 Passed: 11 July 2001 Commenced: See endnotes

AN ACT to re-enact Parts I and II of the Family Law Act 1991; to reform the law relating to children; to provide for social services for children in danger and in need; to provide for the regulation of fostering; to make new provision for human fertilisation, embryology and surrogacy; and for connected purposes.1

PART 1 – GENERAL PROVISIONS

General principle

1 Welfare of the child [P1989/41/1 and 11; P1991/3/1 and 11] (1) When a court determines any question with respect to — (a) the upbringing of a child, or (b) the administration of a child’s property or the application of any income arising from it, the welfare of that child shall be the court’s paramount consideration. (2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. (3) Subject to subsections (1) and (2), a court in any proceedings referred to in subsection (2) shall seek, so far as practicable, to promote the upbringing of children by their families; and for this purpose “family”, in relation to a child, includes any individual who has parental responsibility for him and any person with whom he has been living. (4) When determining whether or not to make, vary or revoke an order under section 11, a special guardianship order, a care order or a

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153 Section 2 Children and Young Persons Act 2001

supervision order, and if so, in what manner, the court shall have regard to all the circumstances of the case including, in particular — (a) the ascertainable wishes and feelings of the child (considered in the light of his age and understanding) and of his parents, any other individual who has parental responsibility for him and any other person whose wishes and feelings the court considers to be relevant; (b) his physical, emotional and (where relevant) educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.2 (5) Where a court is considering whether or not to make one or more orders under this Part or Part 2, 4 or 5 with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

Parental responsibility

2 Meaning of “parental responsibility” [P1989/41/2 and 3; P1991/3/2] (1) In this Act, and in any enactment passed or made after the 19th March 1991, “parental responsibility”, in relation to a child, — (a) means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property; and (b) includes the rights, powers and duties which a guardian of the child’s estate appointed to act generally would have had in relation to the child and his property, including in particular the right to receive or recover in his own name, for the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover. (2) More than one person may have parental responsibility for a child at the same time. (3) A person who has parental responsibility for a child at any time does not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child.

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154 Children and Young Persons Act 2001 Section 3

(4) The fact that a person has parental responsibility for a child does not entitle him to act in any way which would be incompatible with an order made with respect to the child under this Act or any other enactment. (5) The fact that a person has, or does not have, parental responsibility for a child does not affect — (a) any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or (b) any rights which, in the event of the child’s death, he or any other person may have in relation to the child’s property. (6) If a person has care of a child but does not have parental responsibility for him, he may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.

3 Parental responsibility for children [P1989/41/2; 1991/3/3] (1) The mother and father of a marital child each have parental responsibility for the child.3 (2) The mother of a non-marital child has parental responsibility for the child, but the father does not have parental responsibility for the child unless he acquires it in accordance with this Act.4 (2A) The father of a non-marital child has parental responsibility for the child if he is registered as the child’s father under section 12(1) of the Civil Registration Act 1984 (registration of father of non-marital child).5 (2B) But subsection (2A) does not confer parental responsibility on a man who, before that subsection comes into operation, was registered as the child’s father under section 12(1) of the Civil Registration Act 1984.6 (3) Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken as affecting the operation of any enactment requiring the consent of more than one person in a matter affecting the child. (4) A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another, but may arrange for some or all of it to be met by one or more persons acting on his behalf (who may be a person who already has parental responsibility for the child). (5) The making of any such arrangement does not affect any liability of the person making it which may arise from any failure to meet any part of his parental responsibility for the child.

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155 156

Appendix 2 Submission dated 16th January 2014 from HM Acting Attorney General

157

158 IN THE MATTER of of the the PETTITONPb ili ION FOR REDRESS OF GRIEVANCEGRIEVANCE of PHILIP JAMESJAMES WALMSLEYWALMSLEY

NOTE TO THE TYNWALD SELECT COMMITTEE TOTO REVIEW THE LAWLAW RELATING TOTO THETHE CARECARE AND AND UPBRINGINGUPBRINGING OF CHILDREN

1.1. ThisThis Advice Advice Note Note summarises summarises the the areas areas of of the the law law which which are are of of most most direct direct relevance toto the PetitionPetition ofof MrMr Philip JamesJames WalmsleyWalmsley ("the ("the Petitioner")Petitioner") as as setset out inin his Petition forfor RedressRedress ofof GrievanceGrievance dated dated thethe 55thth JulyJuly 2013, and alsoalso commentscomments on the Petitioner'sPetitioner's proposals as setset outout inin thethe PrayerPrayer ofof hishis Petition.Petition.

2. TheThe legislationlegislation of of directdirect relevancerelevance to to thethe Petitioner's Petitioner's circumstances, andand indeed to allall privateprivate lawlaw applications in respect ofof children,children, isis the ChildrenChildren andand YoungYoung Persons Act 2001 ("the Act").Act").

3. SectionSection 1 1of of the the Act Act establishes establishes that that Courts Courts as as a astarting starting point point must must take take into into account the child's child's welfare as thethe paramount paramount considerationconsideration when when determining determining any question in respect ofof the upbringingupbringing ofof aa child.child.

4. TheThe Orders Orders with with respect respect to to children children which which can can be be made made by by the the Court Court are are set set out underunder sectionsection 11 11 of of thethe Act.Act. Applications Applications for Orders under section 11 may be made by either parent oror byby guardiansguardians ofof the childchild concerned.

5. ThereThere are are fourfour typestypes ofof OrdersOrders whichwhich the the CourtCourt can can make make under under section section 11:11:

(i) aa ResidenceResidence Order Order (an (an OrderOrder whichwhich settles settles arrangementsarrangements ofof wherewhere thethe child shall live); live); (ii) aa ContactContact OrderOrder (an(an Order whichwhich requiresrequires the the person with whomwhom thethe child lives toto facilitatefacilitate contactcontact betweenbetween thethe child andand anotheranother person); (iii)(¡¡i) aa ProhibitedProhibited Steps Steps OrderOrder (an(an OrderOrder whichwhich isis akinakin to to anan Injunction,Injunction, preventingpreventing a person person from from taking taking specified specified action in the the exercise exercise of of their their parental parental responsibility); and (iv) aa SpecificSpecific Issue Issue OrderOrder (an(an OrderOrder whichwhich determines determines aa course of action arising where an aspect aspect ofof the the exercise exercise of of parental parental responsibility responsibility arisesarises uponupon whichwhich those whowho havehave parentalparental responsibilityresponsibility cannotcannot agree).agree).

159

6. The meaningmeaning of "parental"parental responsibility" responsibility" is is describeddescribed at at sectionsection 22 of the ActAct as follows:-follows:-

"2 (1) (1) In this Act, andand in any enactmentenactment passedpassed oror mademade afterafter thethe 19 19thth March 1991, "parental responsibility", inin relationrelation toto a child, -

(a) meansmeans allall thethe rights, rights, duties, duties, powers, powers, responsibilities responsibilities andand authority which byby lawlaw aa parentparent of a childchild has in relation to the childchild and hishis property; and (b) includesincludes the the rights,rights, powerspowers and and dutiesduties whichwhich aa guardianguardian ofof the child'schild's estate appointedappointed toto actact generallygenerally wouldwould have hadhad in relation relation to the the child child and and his his property, property, including including in in particular thethe right toto receive or uncover uncover in his own name, name, for the benefitbenefit ofof thethe child,child, property property ofof whateverwhatever descriptiondescription and wherever wherever situatedsituated which which the childchild is entitledentitled to receive receive or recover. (2) MoreMore than than one one personperson may have parental responsibility responsibility forfor aa child at the samesame time.time. (3) AA personperson whowho hashas parental responsibility for for a a childchild atat anyany time does not not cease cease to to have have that that responsibility responsibility solely solely because because some some other personperson subsequently subsequently acquiresacquires parental parental responsibility responsibility for the child. (4) TheThe factfact thatthat a person person has has parentalparental responsibility responsibility forfor a child doesdoes not entitle entitle him him to to act act in in any any way way which which would would be be incompatible incompatible with an Order made with respect toto thethe childchild underunder thisthis ActAct or any other enactment. (5) The The fact fact that that a aperson person has, has, or or does does not not have, have, personal personal parental parental

responsibility forfor aa child doesdoes not affect (a) any obligation obligation whichwhich hehe may have in in relation relation to the the child child (such as aa statutorystatutory dutyduty toto maintainmaintain thethe child);child); oror (b) any right which, inin thethe event of the child'schild's death,death, he or any other personperson maymay havehave inin relationrelation toto thethe child'schild's property.property. (6) IfIf a person person has has care care of of a a child child but but does does not not have have parental parental responsibility for for him,him, hehe maymay (subject to the the provisions provisions of this

2 160 Act) dodo whatwhat is reasonable in allall thethe circumstances ofof thethe case for the purposepurpose ofof safeguardingsafeguarding oror promotingpromoting the child'schild's welfare."

7. The The conceptconcept ofof parentalparental responsibility,responsibility, introduced inin 20012001 byby thethe Act, was aa deliberate shiftshift awayaway fromfrom thethe previous positionposition that that parentsparents hadhad 'rights' when it it came to theirtheir children,children, and replaced replaced this previousprevious position withwith aa new concept (now the established established law) thatthat it it is is for for parents parents to to have have responsibilities responsibilities towards towards (as (as opposed to rightsrights over) their children and that thethe exerciseexercise ofof suchsuch responsibilitiesresponsibilities is to bebe consideredconsidered in thethe context ofof thethe benefitbenefit ofof thethe child,child, not not the the parent.parent. Section Section 3 of the ActAct reflects this shift which provides:-

"3 (1) The The mother mother and and father father of of a childa child who who is is a amarital marital childchild eacheach havehave parental responsibilityresponsibility for the child.child.

(2) The mother mother of a a child child who who is is not not a a marital marital child child has has parental parental responsibility for for the the child,child, but but the the fatherfather doesdoes not havehave parental parental responsibility forfor thethe childchild unlessunless hehe acquires it inin accordance withwith this Act.Act.

(3) Where more than one one person person has has parental parental responsibility responsibility for a a child, eacheach ofof them may act alone alone and and without without the other other (or (or others) inin meetingmeeting thatthat responsibility;responsibility; but but nothingnothing inin thisthis PartPart shallshall be taken as affectingaffecting the operationoperation ofof any enactment requiringrequiring the consent of more than oneone personperson inin aa mattermatter affectingaffecting thethe child.child.

(4) A person person who has has parental parental responsibility responsibility forfor aa child child may may not not surrender or transfer anyany partpart ofof thatthat responsibilityresponsibility toto another, but may arrange forfor somesome oror allall ofof itit toto be be met met by by one one or or more more

persons acting on his behalf (who may be aa person person whowho alreadyalready has parentalparental responsibilityresponsibility for the child).child).

(5) The making of any such arrangementarrangement doesdoes notnot affect affect any any liability liability of the personperson making making itit whichwhich may arise fromfrom any failure toto meet any partpart ofof hishis parentalparental responsibilityresponsibility for the child."child."

161 8. TheThe Petitioner's position position as as described inin hishis Petition isis that he he made made applications inin respectrespect ofof his son son initially initially forfor a Contact Contact Order, Order, subsequently subsequently a a Residence Order,Order, and latterly a Shared ResidenceResidence Order.

9. SharedShared ResidenceResidence Orders Orders are are not not specificallyspecifically referred to withinwithin the Act,Act, but but they have developed outout ofof casecase lawlaw andand areare made by the Court Court or by by way way of of Consent OrdersOrders wherewhere thethe parties to the the family family litigation litigation agreeagree onon that approach approach being formalisedformalised byby aa Court Order.Order. Shared Shared Residence Residence Orders Orders do not, not, however, however, necessarily mean that thethe childchild whowho isis the subjectsubject ofof thethe OrderOrder will will livelive for half ofof thethe time with each party. The The Order Order often often defines defines the the actual actual split split of of the the living living arrangements oror maymay atat timestimes bebe silent asas toto the split. The The rationale rationale of of aa Shared Shared Residence OrderOrder isis oftenoften toto emphasise thatthat the child child has has a a continuing continuing home home withwith each parent. Shared Shared Residence Residence OrdersOrders areare used used in in circumstances circumstances where they are considered appropriateappropriate to to thethe particular casecase andand thethe parties agree or, if if the CourtCourt considers andand so orders in a particular case,case, that it is in thethe interests of the childchild thatthat a SharedShared ResidenceResidence Order be made.

10.10. TheThe Court, Court, in in determining determining any any application application concerning concerning Contact Contact Orders, Orders, Residence OrdersOrders oror Shared Residence Orders,Orders, willwill havehave regardregard toto all the relevant relevant circumstances ofof thethe casecase so as toto reachreach aa decision,decision, thethe paramountparamount intentionintention oror aimaim of which isis thethe child's bestbest interests (welfare). The The CourtCourt approaches such matters from the startingstarting point point thatthat thethe onlyonly "rights""rights" whichwhich it needsneeds toto givegive considerationconsideration to are thethe rightsrights ofof thethe child.child. In In this this regard regard it it will will ordinarilyordinarily consider that a childchild has a right to have contactcontact withwith both of hishis or herher parentsparents andand thisthis rightright willwill bebe promotedpromoted and supported supported by the Court Court unless therethere is a good good reason reason to to depart depart from from this this approach. The The parentsparents dodo notnot themselves themselves havehave rightsrights toto oror overover aa child,child, but they do have decision-making powerspowers andand certain responsibilities responsibilities attachingattaching to theirtheir exerciseexercise of those those powers. powers. Where Where there there is is a adisagreement disagreement in in respect respect of of how how those those responsibilities should should be be exercised exercised between between parents,parents, thenthen thethe CourtsCourts often have to resolve thatthat dispute. The The Court'sCourt's aimaim in in resolving resolving these disputesdisputes isis howeverhowever not to satisfy the parties (the mother/father/grandparents),mother/father/grandparents), but but toto decidedecide uponupon aa coursecourse ofof action which is most appropriate appropriate for the child's child's welfare. welfare. Many Many parties parties in in family family litigation failfail to to identifyidentify that that thethe child's interestsinterests may be different different from his or her her parents' interests.

4 162 11.11. The Petitioner proposes, in his Petition, thatthat both parents should have, inin law, equal rights and responsibilities responsibilities over over their their childchild (where(where there there isis no history history of of domestic abuse,abuse, neglectneglect oror violence).violence). To suggest such a concept concept namely namely that parents have rights over children is is contrary contrary to to the the current current legal legal approach. approach. InIn cases where parents have have shared shared parental parental responsibility responsibility in respect of their childrenchildren they already have, in principle, principle, equalequal responsibilities towards towards their their children. children. ItIt may be that exercisingexercising thatthat sharedshared responsibility responsibility jointlyjointly cancan oftenoften bebe difficultdifficult especiallyespecially when the parents' parents' relationship relationship hashas brokenbroken down.down. It isis atat thethe point point whenwhen parents parents cannotcannot reach agreement when parents often deem it it necessarynecessary to make make an an application application to Court, soso that that any any areas areas of of parenting parenting responsibilities responsibilities uponupon whichwhich therethere isis a a disagreement can be dealt withwith independently and,and, in accordance withwith thethe Act.Act. The Court willwill then then seekseek toto reachreach aa decision inin thethe child'schild's bestbest interest.interest. So So whilstwhilst the Petitioner suggestssuggests thatthat parents should should have have equal equal responsibilities responsibilities (as(as opposed to rights) over theirtheir child, thisthis isis alreadyalready thethe positionposition inin manymany cases cases wherewhere bothboth parents have shared parentalparental responsibilityresponsibility and bothboth exerciseexercise thatthat responsibility.responsibility.

12.12. In respect ofof the Petitioner'sPetitioner's suggestion that parentsparents mustmust attendattend aa minimum minimum of three compulsorycompulsory mediation sessionssessions before a matter relatingrelating to childrenchildren is taken to Court; Court; it it is is hard hard to to understand understand how how enforced enforced mediation mediation might assist in these these circumstances given thatthat one of the fundamentalfundamental principlesprinciples of mediation is that bothboth parties must be willing to to agreeagree toto mediation asas aa means of attempting to reach an agreement through the mediation process.process. In In manymany cases,cases, oneone oror bothboth partiesparties maymay be completely completely entrenchedentrenched inin theirtheir views,views, andand unlessunless therethere waswas going toto be any any meaningful negotiationnegotiation thenthen atat best mediationmediation in these circumstancescircumstances will bebe a waste of time and potentiallypotentially ofof money,money, andand at worse could make the situation worse.

13.13. In respect respect of of the the Petitioner's Petitioner's proposal proposal that, that, should should mediation mediation fail, fail, both both parents should attend Court Court Hearings Hearings without an Advocate Advocate such a a provision, provision, I

suggest, this couldcould be consideredconsidered inappropriate andand notnot in the interests interests of justice'.justice1. Parties to litigation litigation maymay choosechoose notnot to have have legal legal representation, representation, but but to to actually actually legislate soso as notnot toto allowallow a partyparty toto litigationlitigation to havehave legallegal representation representation wouldwould be

unlikely toto be compliant with the Human Human Rights Rights Act 2001. The The Family Family CourtCourt isis wellwell

'1 InsofarInsofar asas thisthis suggestion suggestion is is drivendriven by by concernsconcerns thatthat oneone party party may may be be privately privately fundingfunding representation and the otherother partyparty not, not, the the Legal Legal AidAid Act Act 1986 1986 establishes establishes in in addition addition to a merits test, aa relativelyrelatively onerous test asas toto meansmeans before before there there is is an an entitlement entitlement to to Legal Legal Aid Aid assistance.

5 163 used to dealing dealing with litigants inin person. The The JudiciaryJudiciary when dealing with matters relating toto childrenchildren areare requiredrequired toto basebase theirtheir decisiondecision on on the the bestbest interestsinterests ofof the child andand suchsuch determinationdetermination isis notnot dependentdependent upon whetherwhether thethe parents areare legallylegally represented.

14.14. In respectrespect ofof the Petitioner'sPetitioner's suggestionsuggestion that SharedShared ResidenceResidence OrdersOrders shouldshould be issued issued as a matter matter ofof coursecourse wherewhere both both parents parents have have demonstrated thatthat they can provide provide a stable family homehome forfor thethe child; asas mentioned, thethe Court can make make Shared Residence Residence OrdersOrders in circumstances circumstances wherewhere it is is considered considered appropriate. appropriate. However, thethe CourtCourt maymay bebe reluctant reluctant to issue issue Share Share Residence Residence Orders in some some circumstances wherewhere it may identify doingdoing soso asas impractical oror unworkable.unworkable. Shared Residence OrdersOrders maymay notnot be considered considered appropriate takingtaking accountaccount ofof allall ofof a a particular case'scase's circumstancescircumstances in in thethe contextcontext ofof the paramountcy paramountcy of the child's child's needs and bestbest interests.interests. Responsibility Responsibility forfor makingmaking welfarewelfare decisions on behalf of a child isis covered byby thethe concept of parentalparental responsibility responsibility andand itit is not necessary for there to to actually actually be be shared shared residence residence arrangements arrangements in in place place for for parental parental responsibility toto bebe exercised.

15.15. In respect respect of of the the Petitioner's Petitioner's suggestion suggestion that that major major decisions decisions should should be be agreed by by bothboth parentsparents oror (in(in defaultdefault ofof thatthat agreement)agreement) byby aa Deemster Deemster whowho wouldwould take into into account both parents wisheswishes and make make a decision decision in thethe best interestsinterests of of the child;child; this mattermatter isis dealtdealt withwith under under currentcurrent legislationlegislation asas aa sectionsection 11 11 Specific Specific Issue Order would bebe thethe course of action thatthat a parent parent couldcould take when agreement could not be reached over a decision decision affectingaffecting the the child.child. In those casescases thethe CourtCourt would taketake note of bothboth parents'parents' opinionsopinions andand reachreach itsits decisiondecision basedbased onon itsits viewview ofof the bestbest interestsinterests ofof thethe child.child.

16.16. In respect respect ofof thethe Petitioner'sPetitioner's suggestion that bothboth parentsparents shouldshould bebe entitledentitled to equal equal time time and and access access to to their their children, children, whether whether thethe relationship relationship between between the parents is acrimonious oror not;not; thisthis suggestion doesdoes notnot workwork asas it does not taketake account of what is in the child'schild's best interestsinterests andand only only focusses upon the parents' parents' wishes. Whilst Whilst inin some casescases anan equalequal splitsplit ofof timetime willwill be in a child's best interests, in other circumstancescircumstances itit will notnot andand the CourtsCourts areare requiredrequired toto applyapply thethe legislationlegislation in such a wayway thatthat inin reaching reaching anyany decisiondecision the child'schild's interestsinterests areare alwaysalways putput first.first.

The Court will taketake into consideration allall ofof the the circumstancescircumstances of of the the case,case, and an

6 164 acrimonious relationshiprelationship between between the the parents is a significantsignificant factor which thethe Court must be able to have have regard regard to and and try try and and help help the the child child deal deal with with those those circumstances. Whilst Whilst it it would would clearly clearly be be beneficial beneficial for children children for separated separated parents to workwork together inin makingmaking shared residenceresidence work for their children, it is not easy to to identify identify how how this this could could be be achieved achieved through through legislation legislation on a a compulsory compulsory basis.

17.17. In In respectrespect ofof the the Petitioner's Petitioner's suggestionsuggestion thatthat the the Isle Isle of of Man Man Children's Children's CentreCentre should onlyonly bebe usedused where therethere is a proven proven danger to a a child, child, or or to to establish establish contact for older children. The The Children's Children's Centre Centre undertakes a valuable valuable role role in in helping childrenchildren and and parentsparents re-buildre-build theirtheir relationshipsrelationships when when there there hashas been a a breakdown ofof thethe relationships relationships perhaps,perhaps, forfor example,example, becausebecause ofof aa period period of of absence. Whilst Whilst thethe IsleIsle ofof Man Man Children'sChildren's Centre can be utilisedutilised for a whole range of reasons, reasons, one one important important reason is to to facilitate facilitate a gradual gradual approach approach to contact contact between aa child andand aa parent. parent. Supervised Supervised contact contact is a a great great comfort comfort to to many many parents and without it matters could be delayed oror remain unresolved. Where Where the Isle of Man Children'sChildren's CentreCentre isis involvedinvolved in in matters matters whichwhich are are alsoalso beingbeing litigated, thethe Centre does not havehave anyany formalformal role within thethe case. For For thethe Isle Isle of of Man Man Children'sChildren's Centre to have a more more formalformal rolerole as thethe Petitioner'sPetitioner's suggestionsuggestion infersinfers maymay well be a helpful movemove forward,forward, howeverhowever thisthis wouldwould dependdepend upon a change change inin law law obligatingobligating the Centre.Centre. This This wouldwould be be aa veryvery significantsignificant development forfor aa charity suchsuch asas the Isle of of Man Man Children's Children's Centre,Centre, which wouldwould clearlyclearly havehave toto consider the resource resource implications unless unless Government Government funding funding was was available available to to assist assist in in this this regard. regard. It isis unlikely, inin mymy view,view, that that anan organisation such as thethe IsleIsle ofof Man Man Children'sChildren's CentreCentre would wantwant any statutory dutyduty toto makemake decisionsdecisions inin childchild welfare cases.

J L4M Quinn _ ..... Acting Attorney General

1616thth January 2014

7 165 166

Appendix 3 Submission dated 3rd March 2014 from the Legal Aid Committee

167

168 169 170

Appendix 4 Submission dated 25th January 2014 from the General Registry incorporating a note from HM Second Deemster

171

172 General Registry Isle of Man Courts of Justice General Registry Deemsters Walk, Bucks Road Oik-Recortyssee Douglas, Isle of Man IM1 3AR Director of Courts & Tribunal Services P W Coppell

Mr J King, Deputy Clerk of Tynwald and Clerk of the Our ref: PWC Legislative Council, Legislative Buildings, Douglas, Your ref: Isle of Man IM1 3PW Date: 02 September 2014

Dear Mr King,

By request dated 17th December 2013, the General Registry was asked to provide a written submission to the Select Committee on the Care and Upbringing of Children in relation to the following:

1. Figures on the numbers of Family Court applications in each of the last three years, with any available estimate of how many cases involved children. Whilst the Family Court arena covers a very wide variety of application types, including some which have some aspects in relation to children, the following represent those matters which are directly in relation to children:

 2011 – 200  2012 – 164  2013 - 258

*The figures do not include matters in relation to Care Proceedings (Public Law) *The figures relate to (Private Law) Family Proceedings in both the Summary and High Courts

2. An update on the implementation of the Select Committee on Legal Aid in Family Matters

The matters concerned are primarily in relation to Legal Aid and will therefore be provided in the response to the separate request made to the Legal Aid Committee. The one exception to this is in relation to the provision of information in relation to Mediation, which is provided under item 3 below.

3. An explanation of the current arrangements for mediation in relation to Family Court Proceedings and how they have evolved

A significant amount of development in this regard has occurred since the Select Committee referred to in item 3 above.

Information in this regard is provided in the three attached documents:

 Mediation Information  Chief Ministers Newsletter Article  Manx Family Mediation Network “Mediation Report”

173

4. Any further comment upon the prayer of the Petitioner (Mr Walmsley)

Whilst it is not appropriate for the General Registry to comment on legal/statutory provision or on Judicial determination or discretion, we can indicate that we believe that the Judiciary are always mindful of the need to keep under consideration existing provisions.

In relation to Family Law in particular I would refer the Committee to the attached addendum provided by His Honour Deemster Corlett.

With regards to the specific proposals made by the Petitioner, we would simply comment that whilst the interests of the child must indeed be paramount, great care will need to be taken to ensure ECHR compatibility, that provisions are equitable and that any proposals do not have significant cost and resource impacts.

I trust that the information provided is of assistance.

Yours sincerely

P W Coppell Director of Courts & Tribunal Services

174 Addendum

With regard to Mr Walmsley’s Petition, it is clearly inappropriate to comment on the individual case in question but His Honour the Second Deemster makes the following general comments:-

1. While Manx family law and procedure in general is reasonably up to date, it has for many years been the desire of the Second Deemster to initiate a reform of certain areas. It has been difficult to ascertain which Department of Government has been responsible for or willing to engage in such reform and no such reforms have therefore been progressed save for example in the area of the rights of unmarried fathers, where a Private Members Bill brought about a long desired change. The Second Deemster has recently once again identified a list of desired reforms which will form the basis of a consultation process with the Isle of Man Law Society and which it is hoped will progress to the drafting of appropriate legislation.

2. Paragraph 2 of the prayer, which refers to the desirability of parents having equal rights and responsibilities, reflects the attitude of the Court and is also reflected in the provisions of the Children and Young Persons Act 2001 and in particular the concept of “parental responsibility”.

3. Paragraph 3 of the prayer may be a desirable process to introduce, save in cases where mediation is unsuitable (a record of domestic violence for example) or where urgent steps are required to safeguard a child’s welfare by court order.

4. The attendance of all parties without legal representation will lead to further delays to an already slow process. Advocates invariably speed up the court process as they know the law (which is often complex) and they are trained and able to separate the relevant from the irrelevant and to prevent emotions from obscuring what is best for the children. The Second Deemster supports more and better trained legal representation, rather than a curtailment of the right to legal representation. In the event that one party is not represented and the other is, all judges are well used to ensuring that the unrepresented party is not disadvantaged. In short, unrepresented parties can lead to delay, which is itself harmful to children. To avoid such delays, the only viable alternative would be to increase the size of the judiciary.

5. As to the paragraph dealing with major decisions being taken by parental agreement and in default by a Deemster in the best interests of the child, this is exactly what occurs at the moment.

6. As to the role of the “contact centre” the Committee should invite input from the Isle of Man Children’s Centre (IOMCC). Evidence from the IOMCC is sometimes directly admitted in court, although it is the Court Welfare Service who perform the role of reporting to the Court on contact and residence issues and who make recommendations to the Court. The use of the IOMCC Contact Centre was a matter discussed at a recent family court user group meeting and it was reiterated that it

175 should only be used where supervised contact is truly justified in the interests of the child. It should certainly not be used routinely as a means of restricting or preventing contact.

176 MEDIATION INFORMATION

In November 2011, and following the recommendations of the Select Committee report into Legal Aid in Family Matters (pp074/10), the Department of Home Affairs introduced an accreditation scheme and a register of qualified mediators.

How was the list of accredited mediators first set up?

The Department of Home Affairs undertook the process of establishing an accreditation and training scheme and it is the General Registries understanding that:

- In June 2010 the Department of Home Affairs advertised for expressions of interest from persons wishing to become accredited Family Mediators - The Department commissioned the Family Mediators Association in the United Kingdom, one of the largest standing member and training organisations in the UK, to be the regulator of, and provide training for, Family Mediation in the Isle of Man - A Family Mediators Association Board considered applications and, based on candidates information, experience and background identified those who were suitable who were then offered part funded (by DHA) refresher/conversion training - Following the training, successful candidates were accredited by the Family Mediators Association (accreditation is renewed annually) - Following accreditation the names of such persons were entered onto the Register and a list of such persons is provided on the Courts of Justice website.

What criteria is in place to ensure the accredited mediators are qualified to do the job?

I understand that all Family Mediators on the Register are trained, qualified and supervised to the standards of the Family Mediator’s Association of the UK.

Available mediators

- There is no vetting of individuals on the register of mediators (save from that referred to above) - The General Registry has no responsibility to vet individuals on the list of accredited mediators and there are no licence requirements. However, the General Registry is not aware of any complaints about the accredited mediation services. - It is not a Government service. It is 3rd party and voluntary.

The use of mediation

- The courts actively encourage parties to use mediation, via a variety of means, including the establishment of a Court Duty Mediator Scheme.

- It is not current practice/policy for all legal aid matters to be referred to mediation, however in the majority of cases, the parties are required to attempt to negotiate a settlement following the grant of legal aid, or evidence that attempts have already been made.

- In some cases it may not be appropriate for parties to use mediation e.g. where domestic abuse is alleged. There is also some evidence that where mediation has

177 been compulsory parties have gone through the process in order to obtain legal aid and therefore the outcome has only been the incurring of additional costs.

- Cases involving a legal aid party progress to mediation at the request of both parties. Clearly where both parties are legally aided, the Legal Aid Office may insist on mediation being used as a means of dispute resolution. The Legal Aid Office has no control in relation to parties who are not in receipt of legal aid.

How many people use mediation as a means of conflict resolution?

The number of mediation sessions used in relation to proceedings which involve a person in receipt of legal aid since 2010 have been: -

Between 1st January 2010 and 4th February 2011 35 Between 5th February 2011 and 4th February 2012 65 Between 5th February 2012 and 4th February 2013 18

Note: Some mediation services were available prior to this scheme.

Is there any up to date information?

The Legal Aid Certifying Officer collates data. There is no up to date data readily available at the moment and it would take a significant amount of time to gather such data. The data will be compiled and provided to Treasury as part of the Legal Aid Certifying Officer’s end of year report in February 2014.

There is no indication as to why there was a significant decrease in the number of mediation sessions used in relation to proceedings which involve a person in receipt of legal aid between the period 5th Feb 2012 and 4th Feb 2013, however it should be noted that similar results have been shown in adjacent jurisdictions who had abolished a previous practice of forcing assisted persons to use mediation (though this may again be under consideration).

In terms of costs savings to legal aid expenditure, the following has been recorded: Between 1st January 2010 and 4th February 2011 £8,525.00 Between 5th February 2011 and 4th February 2012 £8,813.00 Between 5th February 2012 and 4th February 2013 £1,755.00

However, the cost of legal aid in family proceedings generally is increasing and this is a matter which the Legal Aid Committee will need to consider.

Manx Family Mediation Network’s Mediation Report

The Manx Family Mediation Network’s Mediation Report (1 October 2011-30 September 2012) which is available on the Courts website (www.courts.im) states: -

 In the vast majority of cases (91%) the mediators were able to identify positive outcomes.  In 75% of cases a resolution or agreement of some of the issues initially separating the parties was reached.  28% of all cases reached the point of requiring and producing a memorandum that could be used in the preparation of a consent order

178  Whilst the identification of the need for adjudication on issues in 50% of cases may be seen as an indicator of limited effectiveness, as noted above it may also be a positive indicator.

A further analysis of the data suggested:

 Of the 50% (28 cases) where the need for adjudication was identified, 18 cases (a further 32%) achieved resolution or agreement on some issues.  Of the 28 cases identified as requiring adjudication only 10 of these (18% of the total) were recorded as not having some resolution or agreement.”

The report added:

“The results of this first survey are encouraging and provide a cause for optimism as to the value and effectiveness of mediation on the Island. However, surveys such as this based upon subjective data from the mediators themselves are, inevitably, limited.

Services can be evaluated on three dimensions: Firstly, the evidence that the service achieves what it sets out to do. Secondly, the relative costs of the service in comparison with others providing a similar service and in comparison to other methods of, in this case, dispute resolution. Thirdly, the views of the users and stake holders of the service.”

This survey provided evidence that family mediation on the island achieved some of its aims of helping couples reach agreement. It was proposed that the evidence base for family mediation could be further strengthened by the mediators repeating this survey and also, systematically seeking the views of the clients and referring advocates of the services.

179 180 E-newsletter issue four:IN FOCUS AUTUMN 2010 25/09/2013 09:50 Page 6

Isle of Man

Gov. enews PAGE 6

Familymediation Helping families cope with the trauma of separation

>>>

It is also recognised that lengthy, costly, stressful and bitter legal disputes are not in anybody’s best interests, particularly when children are involved. Mediation is increasingly being seen as an alternative way to support families experiencing the trauma of a relationship breakdown. A Duty Mediation Scheme has been introduced at the Isle of Man Courts of Justice with the aim of providing faster and more cost-effective resolution in cases of divorce or separation. Here, we explain the potential benefits of mediation …

• What is Family Mediation? Family Mediation is ... • Independent of the Family Court and Government officials • An alternative way to address family and financial questions which inevitably arise when two people separate. It aims to help parents reduce the impact of family breakdown on their children • Impartial. Family mediators do not discussions that take place. • Principally a way of helping families direct, advise, express personal opinions or reach agreement about how to continue to make decisions. They will often supply • What are the benefits of look after their children. Family mediation substantial information and guidance to mediation? in also offered to couples who may or may help move discussions forward • The primary benefit of mediation is to not have children to help them to reach • About helping people to make their

help the parties reach a negotiated agreement about financial matters own decisions settlement of most, if not all of the issues • Voluntary. No one is forced to go to • Confidential and legally privileged to and minimise the possibility of protracted

mediation; although it is fair to say that the participants. This means that until a and fractious legal proceedings the Court may strongly recommend point is reached where proposals are • It is far preferable when parents couples to find out about, and try, contained within a written summary, no- agree on issues relating to their children. mediation one is able to use or refer to the ‘ Family mediation can assist parties in reaching common ground and agreeing upon what is in the best interests of their Family mediation can help parties reach a children. It can save some of the stress negotiated settlement of most, if not all of and costs of contested hearings in respect of both family and financial proceedings. the issues and minimise the possibility of protracted and fractious legal proceedings ‘ Continued on page 7 Sign up to become a Global Friend of the Isle of Man and receive regular updates 181

Divorce is acknowledged http://www.gov.im/cso/friends.aspx as one of life’s most traumatic events. E-newsletter issue four:IN FOCUS AUTUMN 2010 25/09/2013 09:50 Page 7

Isle of Man

PAGE 7 Gov. enews

Judiciary actively encourages 2013 TT Festival parties to consider attracts 40,000 visitors to Island mediation at direction hearings >>>

Continued from page 6

• Parties are asked if they have been • What is the purpose of the Duty through mediation on application forms Mediation Scheme? • Mediation leaflets and information • The Duty Mediation Scheme has been about what the court expects from parents arranged between the Family Court and is provided to those making new http://tinyurl.com/o5vclxr the Manx Family Mediation Network to applications help make people aware that there are • Leaflets are provided at the Isle of different paths through the complexities of Man Courts of Justice divorce and separation and that these can • The Judiciary actively encourages lead to good arrangements for children parties to consider mediation at directions and financial settlement hearings. • The scheme sessions are at the same time as Court sittings so anyone in • How is mediation funded? attendance can gain an introduction to family mediation and access information. • By the parties Family mediators’ time is given freely with • In certain circumstances via the Legal no cost to the Court or the Government. Aid system.

• What is the Manx Family Mediation Network? HELPFUL HINTS • MFMN is an association of trained and A list of registered mediators is qualified family mediators practising in the available to view on the Courts of Isle of Man which works to help couples Justice website reach a negotiated settlement without the need for litigation.

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Watch Cav’s amazing ride here http://tinyurl.com/q96yn2l

182

The 2013 TT Festival • What is the Family Court’s http://tinyurl.com/nv9onx2attracted almost 40,000 visitors toapproach to mediation? the Isle of Man, according to the results of a survey released by the Economic Affairs Division of Treasury. The findings are based on 6,160 interviews conducted with passengers departing the Island between Monday of Practice Week and Wednesday following Senior Race Day. Among the headline statistics are: • Almost 40,000 visitors came to the Island for the TT in 2013, up 27% on the comparable figure for 2010. • On average, they stayed 6.5 nights and spent £668 on the trip – a total of £26.2 million. This represents an economic benefit to the Island of £18.9m and an exchequer benefit of £3.5m. • The number of TT visitors in the Island on any one day reached a peak of just over 25,000 on Sunday 2 June (Mad Sunday). • 73% had been to the Island previously for TT, and 2% tend to visit for other events such as the Southern 100 and MGP. An electronic copy of the full report is available to download at Manx Family Mediation Network

Mediation Report

1st October 2011- 30th September 2012

Background

The Manx Family Mediation Network (MFMN) is an association of trained and qualified family mediators practising on the Island.

Some of the aims of the network are, when relationships between adults break down, to help couples reach agreements as to how to support and parent their children, rather than litigating issues. We wish to contribute to reducing the expense of divorce and separation to self funding clients and to the public purse for those legally aided, by offering a faster and more effective resolution to difficulties than may be possible through litigation alone. We believe that, as a general principle, children’s interest are best promoted by the continued regular involvement of both parents in their lives and by the parents finding ways to cooperate and communicate effectively for the benefit of the child.

Mediation sets out to help separated parents communicate in a more amicable model than the traditional legal approach. It falls into three different categories, children mediation, finance and property mediation and all issues mediation.

Mediation is:  a process by which couples negotiate face to face about the arrangements for their future with the help of a neutral third party – a mediator;  a safe place to resolve their differences at your own pace;  an opportunity to recognise the needs of children as well as of parents;  a way of helping parents reach agreements which take account of all their, concerns and interests;  comprehensive –all issues can be considered together;  confidential, save for the sharing of financial information and any concerns about child protection; It is suitable not only for married couples but also for those co-habiting, whether same sex , or heterosexual.

The mediators belonging to the Manx Family Mediation Network adhere to the four main principles: 1. Mediation is voluntary. There will be no undue pressure to participate in the process, although increasingly Courts expect couples to have attempted mediation before starting Court proceedings the choice to mediate still lies with the clients. In particular, mediators will be cautious about proceeding in cases of abuse or violence or an extreme imbalance of power; 2. The mediators are impartial – mediators will not direct or express a personal opinion. (Although mediators will not give advice, they will often provide substantial information and guidance); 3. Mediation is confidential, unless there are issues of Child Protection, Domestic Violence, or money laundering. Any set of proposals that are mutually acceptable will be written up as a confidential summary which will not be legally binding until ratified by lawyers or the Court and cannot be referred to in Court proceedings. Discussions during mediation and these confidential documents are conducted on a Without Prejudice basis There must however be comprehensive disclosure of financial information; this can be shared with lawyers or with the Court in a separate document at a later stage; 4. Decision making rests with the participants; that is, the parents are treated as the experts in dealing with their children, your finances and their future.

183 As part of its commitment to professional practice and towards the development of mediation on the Island the network resolved to collect data on the effectiveness of mediation on the Island.

This first report covers the period from 1st October 2011 to 30th September 2012

Five qualified members of the Network were providing mediation services on the Island during the survey period. They were Sue Smith, John Kermode, Sally Bolton, Tina Hall, and, Wendy Megson,. For the most part a co-mediation model is operated, that is using two mediators working together on cases.

Mediations can consist of one or several sessions spread over a period of days to months. The duration of the mediation and the number of mediation sessions is determined by the complexity of the issues, the wishes of the clients, the degree of conflict, the pressure of issues at a particular time in the parties’ separations and the availability of finance.

In every case a lead mediator is identified who is responsible for the administrative arrangements with the clients, the coordination of the preparation of summaries to the clients and a final summary of proposals that could be used for the preparation of a consent order.

In practice clients arrive at mediation already in the state of quite high conflict. Their relationship with each other has broken down and it is rare for all of the issues leading to the separation being resolved. Mediation focuses on the future and the arrangements required for them and their children. There are often very strong feelings as to unfairness and how badly each has been treated by the other. They have already found it impossible to make agreements with respect to finances, children or all issues by themselves or with the help of advocates. From each partner’s perceptions of the conduct of the other there is a general lack of trust or confidence in the other person’s statements, motives and words. They arrive with a strong tendency to blame each other, punish the other for perceived wrongdoings and emotional hurt caused.

It would be hopelessly unrealistic to aim to resolve all of the complex issues that led to disintegration of a once affectionate relationship in a few mediation sessions. It should however be possible to help the couple to identify areas in which they agree and areas where they disagree. From this it is generally possible to identify areas where they can both support compromise proposals. In some cases and with some issues, after exploration of the views of the participants, it is clear no compromise will be possible on one or some points and arbitration by the court will be necessary Where agreement is possible on some or all of the issues, a final summary, or in more complex cases, a memorandum of understanding can be prepared to be used in the preparation of binding consent order. Some couples will not require this step.

Not all clients require the preparation of a memorandum of understanding ( which does involve them in additional cost), but all lead mediators provided written summaries of each mediation session.

In order to capture these various outcomes the Manx mediation network had proposed the following scale to be used as the basis for data capture:

Some positive Issues requiring A resolution A written summary of outcomes were adjudication were or proposals that could be used identified identified agreement for the preparation of a of some consent order was prepared issues was achieved

184 Methodology

All members were asked to review their cases records for mediations. Cases were included in this review if the last recorded mediation session fell within the period surveyed.

To avoid possible double counting, mediators were asked to include clients in their return only if they were the lead mediator.

Three mediators identified themselves as lead mediators and provided returns for clients using the following template:

Name or Date of last Some Issues A resolution Was a written summary of identifier mediation positive requiring or proposals that could be session outcomes adjudication agreement used for the preparation of (1/10/11- were were of some a consent order prepared? 30/9/12) identified identified issues (Yes /No) (Yes /No) (Yes /No) achieved? (Yes /No)

Information on 56 cases was collected and analysed.

Results

The following results were obtained:

Some Issues requiring A resolution or Was a written positive adjudication were agreement of summary of outcomes identified some issues proposals were (Yes /No) achieved? that could be identified (Yes /No) used for the (Yes /No) preparation of a consent order prepared? (Yes /No) Summary “Yes” 51 28 42 15 “No” 5 28 14 38 Total 56 56 56 53

percentages % Yes 91.07% 50.00% 75.00% 28.30% %No 8.93% 50.00% 25.00% 71.70%

The interpretation of ‘Issues requiring adjudication” is complex and is difficult to disentangle from the data. It is a matter of judgment if “Issues requiring Adjudication” is evidence of a positive outcome or not. I would argue it is a positive indicator. I hold the view that if through mediation a complex emotional case can be reduced to a limited number of discrete issues for

185 adjudication then progress has been made and communication promoted.

Summary

The results are encouraging and may be summarised as follows:

 In the vast majority of cases (91%) the mediators were able to identify positive outcomes.

 In 75% of cases a resolution or agreement of some of the issues initially separating the parties was reached.

 28% of all cases reached the point of requiring and producing a memorandum that could be used in the preparation of a consent order

 Whilst the identification of the need for adjudication on issues in 50% of cases may be seen as an indicator of limited effectiveness, as noted above it it may also be a positive indicator.

A further analysis of the data suggests:

 Of the 50% (28 cases) where the need for adjudication was identified, 18 cases ( a further 32%) achieved resolution or agreement on some issues.

 Of the 28 cases identified as requiring adjudication only 10 of these ( 18% of the total) were recorded as not having some resolution or agreement.

Discussion

The results of this first survey are encouraging and provide a cause for optimism as to the value and effectiveness of mediation on the Island. However, surveys such as this based upon subjective data from the mediators themselves are, inevitably, limited.

This survey provides evidence that Family mediation on the island achieves some of its aims of helping couples reach agreement. Is proposed that evidence base for Family Mediation could be further strengthened by repeating this survey and also, systematically seeking the views of the clients and referring advocates of the services.

John Kermode 25/2/13

186

Appendix 5 Update provided on 3rd March 2014 by the General Registry on the implementation of the recommendations of the Select Committee on Legal Aid in Family Matters

187

188 Recommendations of Select Committee on Legal Aid in Family Matters FIRST REPORT UPDATE Recommendation 1 That legislative proposals to put in place a Relevant provisions were introduced by the Legal “statutory charge” be introduced into the Aid (Amendment) Act 2012. Draft regulations in Branches by January 2011 at the latest relation to the statutory charge are currently out for public consultation.

Recommendation 2 That Tynwald calls upon the Chief Registrar, the Legal Aid literature has been amended to make Legal Aid Certifying Officer and the Isle of Man reference to the use of mediation. When Law Society each to take active steps to promote granted, legal aid funding is usually limited to and to make more accessible to the public make the parties attempt to settle the dispute by positive messages about mediation such as those negotiation, which may include the use of contained in the Courts Service leaflet CHI01 mediation.

Recommendation 3 That legislative proposals to enable legal aid Relevant provisions were introduced by the Legal funding for early mediation be introduced into Aid (Amendment) Act 2012. Draft regulations in the Branches by January 2011 at the latest relation to the availability of legal aid for mediation are currently out for public consultation.

Recommendation 4 That arrangements should be put in place to The Legal Aid Office has always sought to ensure with-hold legal aid funding from parties who that parties involved in a dispute attempt to unreasonably fail to attend mediation and who settle the matter by way of negotiation. This fail to participate constructively in it. may include the use of mediation. Should the dispute fail to be resolved by way of negotiation, the assisted party is required to provide evidence as to why it was unsuccessful. If the assisted party fails to provide evidence in this regard or it transpires that the failure was the fault of the assisted person, then the legal aid certificate will not be extended to include further work. Draft regulations in relation to the availability of legal aid for mediation are currently out for public consultation.

Recommendation 5 That the Treasury give careful consideration to the potential merits of supporting a permanent third party mediation service, including through the commitment of continuing grant in aid at a realistic level, and report to Tynwald.

Recommendation 6 That in developing its accreditation scheme, the Mr Coppell provided an update in relation to this Department of Home Affairs should give recommendation as part of his response

189 consideration to whether it would be cost effective to adopt a standard from another jurisdiction.

Recommendation 7 That Tynwald expects the Isle of Man Law Society to do everything in its power to promote best practice in the handling by Manx Advocates of family matters and above all to give due prominence to the welfare of the children.

SECOND REPORT Recommendation 1 That an opportunity be provided for review by A new Legal Aid Appeals Tribunal was formed another person or body, of action taken by the following the introduction of the Legal Aid Legal Aid Certifying Officer in response to (Amendment) Act 2012. Draft Rules are being representations made by the opponent of an progressed in this regard which include the assisted person. ability of the opponent of the assisted person to appeal against a decision to either grant or continue to allow legal aid funding to be available to an assisted person.

Recommendation 2 That the Legal Aid Certifying Officer should adopt The Legal Aid (Amendment) Act 2012 introduced standards for handling complaints in line with a newly constituted Legal Aid Committee whose those adopted by Government Departments, functions include the oversight of the Legal Aid and that provision should be made to allow the Certifying Officer and legal aid administration. Legal Aid Certifying Officer’s administrative practices to be investigated by the proposed Tynwald Commissioner for Administration.

Recommendation 3 That a new Board should be put in place with a The Legal Aid (Amendment) Act 2012 introduced general remit to oversee the administration of a newly constituted Legal Aid Committee whose the legal aid system, and a specific responsibility functions include the oversight of the Legal Aid to review the actions of the Certifying Officer in Certifying Officer and legal aid administration. response to representations from the opponent of an assisted person. The Board should be unable to sit unless the majority of members present are non-lawyers.

Recommendation 4 That detailed plans be made for the The report was submitted to, and considered by, implementation of Recommendations 1 to 3 Tynwald on 12th April 2011. above and that a report be made to Tynwald, with recommendations, no later than the sitting in April 2011.

190

Appendix 6 Submission dated 24th December 2013 from the Family Court Welfare Service

191

192 In Tynwald on 5th July 2013 the Petition of Mr Philip James Walmsley 18 Ballachrink, Colby, IM9 4PB.

Response from the Family Court Welfare Service.

A Committee be established to review the law relating to care and upbringing of children, especially in cases of broken marriages and other relationships, with the special task of examining the ways of introducing law to ensure that: With regards to child residence and contact cases, that both parents have equal rights and responsibilities over their child, where there is no history of domestic abuse, neglect or violence from either parent.

The laws relating to the care and welfare of children follow the fundamentals of the Children and Young Person Act 2001. The legal framework is robust and it is undeniably right that the best interests of the child should be the paramount consideration in every case. Cases should be driven by the principle of ‘no delay’ and if a dispute can be resolved without a formal Court Order, then no Court Order should be made.

But whilst everyone working within the system on the Island would espouse these principles, the processes can at times make this difficult to deliver for the children. It is worrying that straightforward disputes need to be resolved in the Courts with many cases where children become the focus for parental feelings of bitterness and hurt. It is a risk that the rights of parents are put before those of their children. Focus can be placed on the Court process, rather than on helping those who need it. It may be helpful to review not the laws themselves but the process within which they are followed within the Courts. Consideration could be given to the outcome and recommendations of the 2011 a Family Justice Review which was undertaken in the UK and the Children and Families Bill was published in February 2013. The recommendations included putting measures in place to try to support families so that they do not need to bring their issues to Court in the first place and in the cases where the Courts do become involved, measures to ensure this can happen quickly and in a straightforward manner. Introducing a new “Child Arrangements Order”, replacing Residence and Contact Orders, which would encourage parents to focus on their child’s needs rather than what they see as their own ‘rights’.

Cases end up in Court as parents do not know where to get the information and support they need to resolve their issues without recourse to Court. There is limited awareness of alternatives to Court, and a good deal of misunderstanding. Despite the best efforts of the Family Court Welfare Officers children often do not understand what is going on and older children feel they do not have enough opportunity to have their say.

Parents must attend a minimum of 3 compulsory mediation sessions before even entering a Court room, in an attempt to resolve any underlying problems or issues, the cost of which should be shared by both parents.

Generally it is better that parents resolve matters for themselves if they can and it is safe to do so. They are then more likely to come to an understanding that will allow arrangements to change as they and their children change. This can be achieved through alternative dispute resolution services such as family mediation. There is already an expectation that the parents will have either tried or at least seriously considered mediation prior to an application being placed before the Courts. There are conflicting views on whether mediation can be compulsory as the fundamental principles of mediation are that the parents enter into the negations freely. For the mediator to overcome the reluctance of one

193 or both participants would require extensive work. Perhaps more work than can be achieved in 3 compulsory sessions. The current position of the mediator listed with the General Registry is, I understand, that the parents agree to participate in mediation on a voluntary basis.

Should mediation sessions fail both parents should attend Court hearings without an Advocate. No parent should be disadvantaged in that one has legal representation and the other does not. The overall outcome should be based on the child not the parents and who has the best legal representative.

There is undoubtedly a feeling of unfairness amongst parents when one is eligible for Legal Aid whilst the other has to pay for representation. It is often felt by the parent paying for representation that the parent receiving Legal Aid prolongs the process incurring them additional costs. In a similar way it is often felt that self represented litigants may also purposely delay matters. There is also a feeling (which may or may not be correct) that Advocates can take an adversarial approach that inflames rather than reduces conflict. Parents often do not agree with the advice they are given by their Advocates. All these reasons may result in parents representing themselves at Court.

Unfortunately even with the assistance of Advocates parents are often confused about the process as the Court system is hard to navigate. Whilst Deemster or High Bailiff is entitled to expect a certain degree of knowledge and aptitude from legal representatives, the litigant in person’s readiness, procedural and legal knowledge, confidence, and general attitude to the proceedings, are largely unknown quantities at the outset of each new case. They will vary greatly. Parents may be less likely to comply with procedural requirements, particularly those with a set timescale. This is partly because they can have difficulty in understanding what is required of them. Litigants in person can find it difficult to present their case articulately, or ask appropriate questions by way of cross-examination of witnesses, especially if they are nervous, anxious or emotionally involved in the case. Although there is evidence that parents can successfully represent themselves there will certainly be some parents who will be disadvantaged by their low levels of eloquence or literacy.

There is no doubt that were both parents to be self represented litigants the process would be much slower. Responsibility for draft Contact Orders, Consent Orders and Schedule of Contact may become the responsibility of Court staff. At a minimum the parents would need assistance in ensuring the documents such as these, that they provided, were written in the correct language. Consideration would also have to be given as to whether the parents have a right to seek reasonable assistance from a layperson, sometimes called a McKenzie Friend who may sit alongside the parent to provide general support. The need for expert evidence in an appropriate case is a particular challenge for litigants in person. Such evidence can be crucial to the outcome of a case. But litigants in person can find it difficult to identify the need for experts and then identify an appropriate expert who is willing to act for them. Many experts are reluctant to take instructions from unrepresented parties. Parents who lack financial assistance often cannot afford to engage these services and agreement would have to be made for the Courts to pay these costs or the parents to co-fund. This is difficult if the parents do not equally believe the expert to be necessary. Similar issues could arise from the need for interpreters/translators. Litigation can be a daunting uphill struggle for an articulate litigant in person, but those difficulties are compounded where English is not a litigant’s first language.

194 All of these issues have the potential for denying the Deemster or High Bailiff the evidence that is relevant and necessary to make decisions on what is in the best interests of the child. In many family cases the relationship between the parents has entirely broken down by the time the Court becomes involved. The Advocates can provide an ‘emotional buffer’, and a degree of objectivity, without which there could be a rise in courtroom tensions. This will in turn mean that cases progress more slowly and agreed resolutions are harder to achieve.

If both parents can provide a stable family home for the child, shared residence orders should be issued (Shared residence not necessarily meaning time split 50/50, but the same amount of input and promotion in the child's life of both parents and equal rights and responsibility of the child for both parents) The principle of shared residency is incorporated in the Children and Young Persons Act. Traditionally it was thought that children needed the stability of one home and that to keep a child going backwards and forwards between the mothers and fathers home was not in the child's best interests. However, in more recent years, there has been a shift towards the shared parenting concept and the increased use of Shared Residence Orders where it is shown to be in the best interests of the child. There need not be a harmonious relationship between the parents to grant a Shared Residence Order. The distance between the parents’ homes should not be a barrier and the time spent by the child with each parent need not be equal. Although no-one would argue with the principle of shared parenting unfortunately the practicalities of enabling true shared parenting where each parent enjoys equal rights and responsibility for their child is fraught with difficulties. Children may have had disrupted contact with a parent which will require a period where the relationship with the parent is re-established. Children can be influenced by their parents and the breakdown of their relationship and may express a wish not to have shared parenting. So even when the Courts put a Shared Residence Order in place which gives equal responsibilities for the care of the child the parents may find that unless the other parent agrees with this they may be prevented from taking on this role. Even if the parent breaches the Order there are few consequences other than a return to Court for the Order to be enforced, this further cements the hostile situation.

Parents who agree that a Shared Residence Order is in the best interests of the child still find the practicalities of it difficult as they struggle with differing views on parenting style, discipline and boundaries etc. Some parents find they cannot even agree on simple matters such as what hairstyle their child will have. It is important that each parent positively promotes shared parenting for it to be successful.

Major decisions regarding schooling etc, should be agreed by both parents. If parents can't come to agreements over major decisions, a Deemster will take both parents wishes into account, and make a decision in the best interests of the child. Neither parent should be disadvantaged in a Court room, both parents should be entitled to equal time and access to their children, whether the relationship between the parents be acrimonious or not.

There is no disputing that it is in a child’s best interests for major decisions that affect their care and welfare should be made by both their parents. During a child’s life there will be innumerable decisions to be made and unfortunately in acrimonious cases it is often difficult for parents to place the child at the forefront of these decisions. However it would be impractical for the parents to return to Court each time they were unable to agree on decisions regarding their children.

195 The Children's Contact Centre should only be used where there is proven danger to a child, or to establish contact for older children. The Contact Centre should have massive input in Court proceedings and should be able to make decisions themselves without the Courts' being involved. They see the day to day aspects of child contact/residence cases.

The Family Court Welfare Service would only recommend the use of the Isle of Man Children’s Centre in exceptional circumstances where there may be concerns for the child’s safety. In the circumstances where a child needs to develop a relationship with the parents within a supported environment this would be time limited and there would be an expectation that the contact progresses beyond the Children’s Centre. Often it is the parent who raises concerns and insists that the contact takes place at the Children’s Centre. In these circumstances the matter has to go through the Courts before it can be established if the alleged risks are substantiated. The Children’s Centre are best placed to respond to the suggestion that they should have input in Court proceedings and be able to make decisions themselves without the Courts' being involved. It is my understanding from my work with the Children’s Centre that they would not wish to do this. They focus on the parent and child relationship and decline requests to write reports for the Court, preferring to contribute verbally to the report by the Family Court Welfare Officer.

Patricia Ingram Director of Community Operations Prison and Probation Service.

196

Appendix 7 Submission dated 20th January 2014 from the Department of Social Care

197

198 DSC Children and Families Service submission in response to the petition of Mr P J Walmsley

Date: 20th January 2014

Author: Debbie Brayshaw Head of Safeguarding

The Children and Families Service would support a review of the Law relating to Part 2 of the CYP Act 2001. In particular:

i) The strengthening of the powers of the court to establish criteria requirements for a welfare report from the court welfare service ii) The strengthening of the powers of the court, and the establishing of the criteria for where, in any family proceedings, concerns for the welfare of the child, requires an investigation of the child’s circumstances by the Department under it’s statutory functions. iii) Consideration of introducing enforcement orders for non-compliance with residence or contact orders made in this part.

The department would support the requirement for mediation as a resolution to dispute although how much needs to be subject of the welfare report.

The department continues to support residence being determined based on the paramountcy of the child’s welfare and “shared residency” may not always achieve stability and security for children.

The Department would not support the restriction or denial of an advocate to any party.

All other areas of the petition, the Department feel can be addressed by the current legislation.

Debbie Brayshaw.

199 200

Appendix 8 Submission dated 1st April 2014 from Hon Eddie Teare MHK, Treasury Minister

201

202 The Treasury

Isle of Man Yn Tashtey Minister for the Treasury Government Government Office, Douglas Reiltys Ellen Vannin Isle of Man, British Isles FROM THE OFFICE OF THE TREASURY MINISTER IM1 3PU

M 3 King Clerk to the Select Committee on the Care and Upbringing of Children E-mail [email protected] Legislative Buildings Government Website: www.gov.im Finch Road Douglas Our Ref: Your Ref: IM1 3PW Date: 1 April 2014

Dear Pf1

Re. Select Committee on the Care and Upbringing of Children

Further to your letter of 26 March 2014 I refer the Committee to the Council of Ministers Tynwald Policy Decisions Report, October 2010 —July 2011 (GD0045/11) and to item 17/10, recommendation 5.

Treasury's response to this recommendation was as follows: -

The budget setting and resource allocation process for 2011/12 determined by Treasury in conjunction with the Council of Ministers did not provide for any grant in aid to continue to this service. The merits of any revised bid will again be considered by the Department concerned & the Treasury through the BEAR process.

Status: Implemented

There has been no change to Treasury's position since this time. I would however draw the Committee's attention to my response to question 14 which was asked in Tynwald in November 2013 (copy enclosed).

Yours sincerely,

Hon W E Teare MHK Minister for the Treasury

203 Hansard: Tynwald, November 2013

14. Legal aid — Mediation service The Hon. Member for Douglas North (Mr Houghton) to ask the Minister for the Treasury: (a) When the legal aid mediation service started; (b) how many mediation sessions have been held to date; and (c) what indication he has of success at this stage with this service?

The President: Question 14. The Hon. Member for Douglas North, Mr Houghton. Mr Houghton: Thank you, Madam President. I beg leave to ask the Question standing in my name.

The President: The Minister for the Treasury to reply. The Minister for the Treasury (Mr Teare): Thank you, Madam President. Turning to the first part, I can advise the Court that there is no legal aid mediation service. Mediation has been a method of dispute resolution used by individuals on the Island for a number of years, but in November 2011, following the recommendations of the Select Committee Report into Legal Aid in Family Matters [PP 074/10], the Department of Home Affairs introduced an accreditation scheme and a register of qualified mediators.

In answer to part (b) of the Question, I understand that information held by the legal aid administration shows that there were some 118 sessions over the three years from January 2010 to February 2013. I understand that the mediators indicated, in a report on the work undertaken, that they had dealt with 56 cases in the period 1st October 2011 to 30th September 2012.

In answer to part (c) of the Question, I would refer the Hon. Member to the Manx Family Mediation Network's mediation report, dated October 2011 to September 2012, which indicated the positive outcomes from mediation in a large majority of cases. This report is available on the courts website via www.courts.im.

Thank you, Madam President.

The President: A supplementary question, Mr Houghton. Mr Houghton: Thank you, Madam President. Is the Minister aware that the mediation service that is in place at this particular point in time is at a charge of £120 an hour — that being £60 each; and is he aware whether legal aid pays for that side for the legally aided party, or in cases where both are legally aided, in both cases? Is he also aware that the costs can be ramped up by shuffle mediation and indeed even co-mediation, where co-mediation can cost £300 an hour?

The Hon. Minister—who himself chaired the Legal Aid Committee looking into all these parameters and reported way back in 2011 — what is his opinion on the charging and also on the service that is given by this outside party?

The President: Minister. The Minister: My understanding is that the legal aid certifying officer will issue a certificate which would extend to mediation. In other words, the cost of the mediation services for those who are legally aided will be covered by the legal aid budget.

His other question is how do we control costs. This is a big issue which is causing me real concerns, I have to say. (Two Members: Hear, hear.) Hon. Members will be aware, from the published financial information, that there is a very substantial sum spent each year on legal aid, not only in family matters but in criminal matters as well. I have had various discussions over the last few months as to how we can deal with that issue, but it is still ongoing and I have not been able to reach a conclusion yet. What is clear is that we must protect the right of those who are unable to fund their own legal

204 proceedings to do so, whilst also making sure that costs are manageable and do not outstrip our ability to pay.

The President: Supplementary, Mr Houghton. Mr Houghton: Thank you, Madam President. Madam President, where the Minister has very ably explained the fact that those legally aided people do receive assistance through legal aid to pay for this system, does he not agree that those who are on that mediation service should at the very least be vetted by someone?

Would he not agree that the whole purpose intended by this Hon. Court was to bring these costs down and hopefully to find people who had the ability to mediate, or indeed chair meetings with the two parties against each other, and those people could be such as magistrates, people of standing who could quite comfortably and capably chair such meetings, rather than go down an extremely expensive process that the Government is still having to fund in respect of legally aided parties?

The President: Minister. The Minister: Thank you, Madam President. The list was prepared on the basis of people who were qualified to undertake the service, but what we are looking at really, by introducing mediation, is to try and get a process and that we have an early resolution of a dispute.

What we have noticed is — certainly in the information and the evidence that came before me, as a member of the Legal Aid in Family Matters Committee — the untold damage that is inflicted on children of the union and the entrenched positions that people can get in if it is not dealt with at an early date, at an early stage. So this was an attempt to deal with it early to reduce — an unfortunate expression — the collateral damage so that people could move on and put it behind them, and that is what we are trying to do.

I take the Hon. Member's point. When you have a look at it in isolation, it does look expensive, but the other side of the coin is if we can spare court time, then that really does help the overall exchequer as well. So, if we have a look at the wider effects, I think it was definitely well worth putting the system in place.

The President: The Hon. Member, Mr Hall. Mr Hall: Thank you, Madam President. An issue that has been brought to my attention, albeit a little bit late in the day, concerns the amendments to section 1 of the Legal Aid Act 1986 in relation to mediation. What appears to have happened is an absolute ban on the possibility of having legal aid for both mediation and the continuation of proceedings at the same time. Would the Minister look into this to clarify, if he is not able to give an answer, and report back?

Would he not further agree that mediation can occur at any stage of proceedings? I understand that it is not uncommon for a court to indicate its wish for parties to attend mediation whilst at the same time expecting them to prepare for trial, albeit perhaps at a slower pace than would otherwise have occurred. I am just a bit concerned that that is what appears to have happened with the amendments to that section, and if he could take a look at it I would be very grateful.

The President: Minister. The Minister: Really, there is an interesting dichotomy here between the Hon. Member who has just resumed his seat and the previous questioner: one is saying that we need to control costs; if we go down the route which is being suggested by the Hon. Member for Onchan, Mr Hall, that is going to increase costs, because basically we would have the mediation service going on one hand and we would have — [Inaudible]

The President: Hon. Member, do you wish to clarify the point? Mr Hall: Yes, Madam President.

205 I am not suggesting anything. What I am saying is what appears to have happened with the amendments to section 1 of the Legal Aid Act 1986, and I am asking the Minister could he just...

Basically, if he cannot answer that, could he just go away and clarify it? I am certainly not suggesting an opinion on it; I am just basing it on a fact that has happened.

The President: Minister. The Minister: I would quite happily read the relevant Act again, but what I would say is that there has to be some incentive, encouragement, for people to actively engage with the mediation service rather than just go through it for another tick in the box — think to themselves, 'I'll go through mediation and then I'll have my day in court.'

We have to make it abundantly clear that we expect them to proactively engage with mediation in a determined attempt to resolve their dispute.

The President: Hon. Member, Mr Karran. Mr Karran: Eaghtyrane, would the Shirveishagh consider the issue of maybe producing more media advertisement of this service as far as the Island is concerned?

Would he not agree that some of the advocates discourage their clients from wanting to go down this road because of the vested interest of it being a lot more money for themselves than actually resolving the issue?

So can we see some advertising campaign so that people know that this service actually exists?

The President: Minister. Mr Houghton: At a huge cost.

The Minister: Yes, it is a good point: how do we publicise the mediation service? My understanding is that the legal aid certifying officer can and does make a recommendation that, before they sign off a legal aid certificate to commence court proceedings, they have to undertake mediation first. So at least they are there to try and encourage mediation, and hopefully people will engage through that.

The President: Final supplementary, Mr Thomas. Mr Thomas: Thank you very much, Madam President. I should declare an interest that I once served on the Legal Aid Committee that was actually reviewing legal aid costs. I resigned when I was elected.

With hindsight, does the Minister have any regrets about how the development of this service was handled? I have heard that one charity invested a substantial amount of its own charitable funds in preparing a service which it thought it would end up providing, but felt it had to withdraw from once the Government scheme was up and running.

The President: Minister. The Minister: No, I think it is too early days to have any regrets. As I did say, it has only been running for just over two years. We need to have a look at it and not react too quickly.

Certainly the initial indications are reasonably encouraging, and if we can have two benefits —the first is to try and control costs, and the second is to get an early resolution of the dispute to the benefit of all parties — then I think it is a target, an aim and an objective that we should all work towards.

206

Appendix 9 Submission dated 8th April 2014 from Mr Kevin O’Riordan, advocate

207

208 SUBMISSION OF KEVIN EDWARD O’RIORDAN TO TYNWALD SELECT COMMITTEE BY REFERENCE TO PETITION OF 5 JULY 2013 OF PHILIP JAMES WALMSLEY

1. I am an advocate and solicitor with considerable experience of the practice of family law both on the Isle of Man and elsewhere. I regularly deputize as a Clerk to the Justices in dealing with cases involving the care and upbringing of children, and occasionally I sit as a Deputy High Bailiff on the same types of case. I am also President of the Isle of Man Law Society although I do not make this submission in that capacity.

2. It is a sad fact of life that intractable contact disputes such as that which Mr Walmsley appears to have experienced are very difficult to resolve. Sometimes such disputes arise over genuine concerns for the welfare of a child, but all too often they simply reflect acrimony following the separation of a child’s parents and/or the inability of the child’s parents to communicate sensibly about the welfare of the child.

3. The younger the child, the harder it can be to address such disputes productively, particularly while the child is less than five years old and therefore most heavily dependent upon his or her main carer, usually the mother.

4. Arrangements for the care of a child are essentially a matter of practical reality, albeit guided by the law. Our current legislation is mainly set out in the Children and Young Persons Act 2001. Setting out the fundamental underlying principle, Section 1 of the Act states that “when a Court determines any question with respect to the upbringing of a child....the welfare of that child shall be the Court’s paramount consideration.” The section goes on to say that “in any proceedings in which any question with respect to the upbringing of a child arises, the Court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”

5. Each case will depend upon its own particular facts and our law allows the judiciary a very wide discretion to order what is best for a child on the facts of the case. It is hard to imagine a more prescriptive approach as likely to achieve a

209 better result for a child. It is noteworthy that in England some careful consideration has already been given to the possibility of a more prescriptive approach, but this has been discarded as not allowing the Courts to take decisions which are in the best interests of children. Instead, in England and Wales the Children and Families Act 2014 provides that ” a court, … is as respects each parent … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.”

6. I am a mediator, and I am a great believer in the power of mediation. However, not all cases are suitable for mediation, and by its very nature mediation has to be a voluntary process. Parties can be pressured into attending at least a first session with a mediator to find out what the process is all about, and I believe that that is a correct approach. However, I can see no useful purpose in trying to force parties to attend several mediation sessions if no progress whatsoever can be made through that medium.

7. In many cases, separated parents are able to provide two separate homes for their children, and many children appear able to adapt reasonably easily to having two separate homes. However, there are certainly some children who need the stability of a main home, and even where the separated parents remain on reasonably good terms, one of the households may not be fully regarded by the child as “home”.

8. For most people, attending Court is an unusual and nerve-wracking experience. They do not know what to expect, do not understand the process, and are unaware of their legal rights and responsibilities. The involvement of an advocate on one or both sides can help make the experience easier for both parties and for the Court, not least by taking some of the heat out of what might otherwise be said in Court. Most family advocates will adopt a conciliatory approach and may well help achieve a negotiated settlement of a dispute even where the opposing party is unrepresented.

210 with Mr Walmsley’s apparent suggestion that parents in a Courtroom are necessarily rendered more equal by the removal of advocates from the process.

10. In deciding what is in the best interests of a child, the Court relies heavily upon the input from a Court Welfare Officer (or sometimes a social worker), often including input from those who may have monitored or supervised contact at the Children’s Centre or a contact centre. However, it remains the task of the Court to take the ultimate decisions, and it is hard to see how this task could properly be delegated as Mr Walmsley appears to be suggesting.

11. The judiciary who deal with disputes over the upbringing of children in the Isle of Man are skilled and experienced. They do their best to encourage the sort of shared care of children to which Mr Walmsley refers, and they regularly censure parents who try to restrict the involvement of the other parent in a child’s life. I do not know the facts of Mr Walmsley’s case, nor the identity of the member or members of the judiciary who have heard his case, but I doubt that Mr Walmsley would only be seeing his 4 year old son for 3 hours per week on a Saturday if the Court could see a realistic possibility of a more liberal contact arrangement being in the best interests of his son.

12. When appropriate, parents who refuse to co-operate over contact which the Court believes to be in the best interests of a child will find themselves dealt with harshly insofar as the welfare of the child allows. In this context, remedies can include imprisonment (or other penalty) for contempt of Court, and in an extreme case removal of a child from the care of a parent. Therefore, in my view the law as it presently stands already enables the Courts to do a considerable amount to protect the interests of children even in difficult cases.

13. The Courts in the Isle of Man do their best to avoid undue delay in dealing with cases relating to children, but the obtaining of reports often requires a period of 3 to 6 months. Where there is going to be unavoidable delay before a final decision can be taken, the Court will usually be keen to make interim arrangements. I am therefore puzzled to note that apparently Mr Walmsley was unable to have any contact whatsoever with his son for a period of over 12 months. Meanwhile, I also note that he apparently changed advocate, and I am wondering whether that may have contributed to the delay rather than a lack of effort on the part of the Court.

211 14. In summary, whilst I have sympathy with Mr Walmsley’s position, I am not convinced that any change in the law or legal practice such as he suggests is likely to be advantageous. I hope that my comments are of some assistance to the Committee.

8th April 2014

Kevin O’Riordan Simcocks Advocates

212

Appendix 10 Submission dated 22nd May 2014 from Mrs Hazel Smith, advocate

213

214 WRITTEN SUBMISSIONS TO TYNWALD SELECT COMMITTEE RE: PETITION OF 5 JULY 2013 OF PHILIP JAMES WALMSLEY Introduction

1. I am an Advocate dealing with matrimonial, family and child care cases. Prior to arriving on the Island in January 2004 I was a Solicitor having been admitted in 1981. 2. I have dealt with many family/care cases throughout my career, in England and here. It is true to say that they are some of the most difficult cases to deal with, not only because of the highly emotional state of the clients, but also because the facts are so very difficult to elicit. When relationships break down, there are obviously two sides to every story. However, the parties may be attesting to such very different factual events that only someone in a judicial capacity can make a decision as to what was more likely than not to have happened. This will, inevitably, involve a determination as to the credibility of both parties. 3. This chasm between the parties on the facts alone makes decision-making very difficult. 4. In my submission, the current legal framework here in relation to family matters is far preferable to the muddle and injustice being meted out in England and Wales. That is not to say that the system cannot be improved but the suggestions made by Mr Walmsley would not, in my view, address the situation. 5. His Honour Deemster Corlett has already embarked upon a review of family law and Her Honour Deemster Roberts is piloting a new scheme relating to care cases. The aim is to streamline and speed up processes. 6. The welfare of the child is at the forefront of the Court’s decision making. It is, in the words of the Act, ‘paramount’. Advocates, too, have a duty to the Court and to the child. Family Advocates, if acting under the codes of best practice imposed in England and Wales, have a duty not to inflame the situation. That is a very difficult balancing act. Your client may tell you that the child is very happy in his/her company. Your opposing Advocate may

215 write to the effect that the child returns home sobbing and saying he/she never wants to see Daddy/Mummy again. Both may be true. Children react to situations and try hard to please their parents thus trying to be Jekyll and Hyde. One version may be entirely false – the reality may be that the child is extremely happy/unhappy at or after contact and one parent is lying. 7. Whatever the situation, the child is caught in the middle but it is important to stress that this is a situation brought about by the parents – not by the Advocates, not by the Court and not by the system.

Mediation

8. I believe that it is to the credit of the Judiciary and Advocates that in this jurisdiction mediation is encouraged. I should add, however, that mediation is not a ‘Government Scheme’. Mediators who deal with legal aid cases have organised themselves into the Manx Family Mediation Network

(www.mediation-network.im) so that referrals can be co-ordinated. Those affiliated to an accredited mediation body (such as the Family Mediators’ Association) have to undertake continuing education, ensure that they have a minimum number of ‘flying hours’ and ensure that they are properly supervised. Those who are not Advocates have to pay for professional indemnity insurance. The low rates applicable mean that there are very few mediators. Most Advocates act as mediators because they are committed to mediation. In the vast majority of cases, they are acting at a loss and thus this is akin to pro bono work. As a result there are very few family mediators on the Island. 9. Mediation cannot be imposed. The whole ethos is that the parties come to a solution themselves. The attempts to impose ‘voluntary’ mediation in England are the subject of criticism – not least because there is now no legal aid for mediators so the parties will not pay for mediation. There is chaos in that jurisdiction and many commentators despair. 10. Here, Advocates encourage mediation. The Judiciary at the first directions hearing will ask whether mediation has been tried. Legal Aid is restricted at

216 the first instance to attempts to negotiate a settlement which would include mediation. 11. Courts and Advocates recognise that the Court system is a blunt instrument. In mediation other avenues for a solution can be explored which would not be part of the Court’s arsenal of remedies.

Education

12. In my submission, however, the most important tool to be provided to parties embroiled in the death throes of a relationship is information relating to how the children will feel during this terrible time and how to protect them from adult issues. 13. The Children’s Centre runs an excellent course for separating/separated parents called ‘Through the Eyes of a Child’. A raft of teaching aids are used to educate parents as to the effects of an acrimonious break up. Videos, discussion groups, activities are all used to encourage parents to think about their conduct and how this will impact on their children. 14. The course is run by Sue Smith (no relation). She is a family mediator who is also specially trained to mediate for children by interviewing them and reporting back to the parents. 15. If anything is compulsory for parents requiring access to justice, in my submission it should be information and education to put the children at the forefront. 16. Mediators will continually reinforce the mantra that the children are paramount. They will remind the parties that the focus at Court is on the child. They will make sure that the parties are aware that any derogatory comments about each other, whilst perhaps justified, will do the children no good.

The Court Process

217 17. If Advocates have been unable to persuade clients to mediate or mediation has failed (but the success rate is good), or the parties are totally at sea and begin proceedings without any advice, then the Court will try to encourage more communication and advise them to consider mediation. 18. It has to remembered, however, that mediation is not free. Our problems are compounded when there is an unrepresented party who will refuse mediation on the grounds that it is too expensive. Access to the Court, after the initial fee, is free. A party may feel that it is cheaper to press on with the Court process and ‘have my say’. 19. Inevitably there are a number of cases which cannot be resolved without Court intervention. The Court will commission a Court Welfare Officer’s report to interview the children, if appropriate, to see them in the care of each parent, if appropriate, and to make enquiries of school, Social Services (if applicable) and other bodies. The CWO’s report will take time (12 to 16 weeks) but the Court will then have some guidance from an independent source before making a decision. At this stage, many cases settle because the CWO’s suggestions are accepted. 20. If all else fails, the Court will make a decision. In my view, the Court process is a harrowing experience for those uninitiated in the procedures, the rules of law and the rules of evidence. The decision may give one party comfort but the other may be wholly alienated. In some instances neither party is happy with the outcome. A Court hearing entrenches the parties rather than opening lines of communication. After all, the clients may be required to communicate for many, many years to come over all sorts of issues – education, medical treatment, punishments, and the wedding! 21. Court should be the last resort. However, it is entirely necessary to have a judicial decision if all else fails. Our system here is relatively quick (bearing in mind the resources of the CWO) and the judiciary keep an eagle eye on the progress of matters to ensure they do not stall.

Legal Aid

218 22. I understand that part of the criticism of the system is that Advocates should not be allowed into the Court room. Firstly the effect of this would be to clog up the whole system of justice in Court. Litigants in person understandably do not know the law, do not understand the process and may be so emotionally involved that they are oblivious to reality. The Court, whilst trying to deal with litigants sensitively, cannot give legal advice. A case involving litigants in person is more difficult to control and much court resource is taken up in explaining the procedures etc to those not represented, in listening to irrelevant points and trawling through evidence which may not be important. 23. In addition, the parties have no-one to advise them as to what is likely to happen even if fought to the last. The parties may bumble on without any idea that their submissions are bound to fail. 24. Further, the Court cannot know the balance of power between the parties outside of the Courtroom. 25. It has been said that the Legally Aided party has an advantage in that they can hire a lawyer at no cost. This totally misses the point that a party has to clear two fences to be legally aided (1) that they are financially eligible and (2) that their case has merit. As Advocates we have to report to Legal Aid frequently to convince the Administration that the case continues to pass the ‘merits test’. If the Client is trying to run wholly unmeritorious arguments which are bound to fail, Legal Aid will not be granted. If there is a report from a CWO which provides a sensible solution, the Client will not be supported by Legal Aid to propose a different solution. This does not prevent the Client from arguing the point – they continue to have access to justice, but the taxpayer will not fund their stance. 26. In England and Wales Legal Aid has been withdrawn in respect of family cases save for those where violence is involved. The Courts are log jammed with litigants in person, so much so that the Courts are appointing lawyers to act as advisers to the Court (amicus curiae) so that the legal principles and countervailing arguments can be presented to the Court by an independent lawyer.

219 27. Further, there are many cases recently where eminent Judges in family matters have pointedly thanked Counsel for their input in assisting the Court, mindful that in the future Counsel will not be available because of the Legal Aid cuts.

Conclusion

28. It is my view that the current processes in family law are entirely fit for purpose. I dread the day when we follow the route of England and Wales where very few have access to a lawyer and the system itself is grinding to a halt because of litigants in person. 29. There needs to be more support for the mediation process in terms of financing, not only for mediators themselves but also to make it worthwhile for others to qualify as mediators (an expensive process in itself). 30. Each case rests on its own facts. Precedent is only a guideline for a case because each is so unique. Parties will inevitably have their own view of how or why their case was dealt with in the way it was, but one can only make a decision as to whether this was manifestly unfair if one has all the facts from three perspectives – the aggrieved party, the other party and those involved in administering justice. Generalisations cannot assist in commenting on a particular case because the facts are not known. 31. Finally, I must emphasise that these are my views but I would hope that they would have the support of the majority of my Learned Friends at the Manx Bar.

Signed ……………………………………..

Dated this 21 day of May 2014

220

Appendix 11 Submission dated 17th January 2014 from the Children’s Centre

221

222

The Children's Centre 94 Woodbourne Road, Douglas Isle of Man IM2 3AS 1; Tel: 01624 676076 1 Fax: 01624 611927 Email: [email protected] The Children's Centre Web: www.thechildrenscentre.org.im Children,Young People and Families First

Response to the Humble Petition of: Mr Philip James Walmsley 18 Ballachrink Colby Isle of Man IM9 4PB

In Tynwald 5th July 2013

To the Honourable Members of Tynwald Court

The Children's Centre provide a Supported Contact Centre held each Saturday with a suitably qualified and experienced staff team. The service is located within the dedicated premises used throughout the week by the Supervised Contact Centre. Both centres have enhanced accreditation with the National Association of Child Contact Centres. The Supported Centre is funded by charitable donations to The Children's Centre whilst the funding of The Supervised Centre is in a contractual relationship with the Department of Social Care.

Cited within the petition, Mr Walmsley has availed himself of the Supported Contact Centre to enable him to spend time with his son.

It is the opinion of the Manager, Contract Centres; Head of Charitable Services; Practice Director and CEO of The Children's Centre that:-

1. The Law relating to the care and upbringing of children, especially in cases of broken marriages and other relationships be reviewed. 2 Services be provided to enable parents to fully consider the needs of the Child; It would be entirely feasible for mediation along with relationship counselling to be provided within the Contact Centre in order to ensure a child centred approach. 3. The Children's Centre believes that every effort should be made to resolve issues without the involvement of the Family Courts. The delegation of such authority could also resolve contact arrangements for siblings, grandparents and extended family members. 4. When matters are placed before the Family Court it is in the child's best interests for each parent to be equally represented; neither should be disadvantaged. 5. Major decisions should be agreed by both parents; advice and mediation should be offered at an early stage to prevent the inherent acrimony impacting upon the child.

John Knight"Knight Chief Executive Officer

Date : 17th January 2014 Signed on behalf of:- Jo Thomas, Practice Director, Mark Payne, Head of Charitable Services, Moira Osborne, Manager Contract Centres • () nocnnocn con ac AALk.

1,13TONS IN MON,

Registered Office: 94 Woodboume Road, Douglas, Isle of Man, IM2 3AS. Company limited by guarantee. Registered in The Isle of Man no: 111719C. The Children's Centre Limited, registered charity no 921 223 224

Appendix 12 Submission dated 15th May 2014 from Judy Arnold, Cruse Bereavement Care

225

226 Jonathan King Deputy Clerk of Tynwald Legislative Buildings Douglas IM1 3PW

16 May 2014

Dear Jonathan

Select Committee on the Care and Upbringing of Children

Thank you for allowing our recent private interview. My request summarises the sensitive emotional support that Cruse provides within the community in comparison to other agencies that require a high public profile.

I have considered matters arising from our meeting and I am pleased to offer a more in-depth contribution.

Using the role model of Cruse Bereavement Care TOM, its structure, safeguarding policies, training and volunteer supervision, a similar model would offer support for the Care and Upbringing of Children in the Isle of Man community.

The wellbeing of Children and Young People (CYP's), their emotional needs and giving them a voice at a time of great change within the home environment will require a sensitive, non-judgemental and confidential approach. I site the development and great success of support given to Bereaved CYP's in school / college as an example of what can be achieved. In partnership with Cruse IOM and part funded by Children in Need, working in primary and senior schools, delivering awareness to both staff and pupils, giving one to one and family/guardian support. This has proven very valuable to teaching staff, the pupils in their charge and their families.

Referrals for CYP support are made to Cruse by School staff, Social Services, GP's CAMHS, family and self-referral. I believe it is the profile of Cruse, its ethics and delivery of service that has prompted requests for support for children at the time of divorce and family disruption.

I am pleased to enclose a short paper on the subject and hope that it will enable a strategy to be implemented for the CYP's living in Isle of Man

Yours sincerely

Judy Arno-rd (Cruse Bereavement Care Volunteer)

227 Care and Upbringing of Children (CaUoC) Parental/Guardian Divorce and Separation

In modern day society some Government based departments have received adverse press that has given rise to some families being very wary of outside intervention. Social Services can be seen as intrusive with parents frightened their children will be taken into care.

The Children Centre giving commendable and invaluable services to children and families could be seen as a very public organisation in particular the provider of a 'Children's Home'

Possible Umbrella facility Within education the position of Director of Services for Children may be able to provide the umbrella for CaUoC

Best practise for intervention: Facilitated possibly by a third sector voluntary service - exampling Cruse Bereavement Care IOM high standards for working in the community, including governing policies, volunteer training, supervision, accountability and the understanding of working with relevant agencies.

AIMS: To support Children and Young People (CYP) at a time of change within a family structure as a result of Divorce or parent/guardian separation

To listen to and give the CYP a voice and input to any legal interventions To offer one to one emotional support in a safe and confidential setting Be non-judgemental Identify needs of carers Help an understanding To refer to other agencies when appropriate Ensure safeguarding is in place Identify and arbitrate Work with parents/guardians Seek early intervention Promote the family idea Help the understanding of transition Facilitate Communication within the family

Getting the message to the Community: Information leaflet: Identifying the support available, with referral and Contact details. Develop a simple web page with click through contacts and information.

Leaflets distributed through schools, Youth drop in centres, College, Social Services and relevant agencies.

228 Referrals to CaUoC:

Self and family, Teachers, GP, Social Services etc

Supporting CYP's: Support offered will be one to one and family centred. Meeting in a safe environment: Family home, school or neutral venue. Assessing the needs of the CYP Ensuring confidentiality Non-Judgemental Non-invasive Person/family centred Facilitating appropriate action

Summary: Separation and loss of family structure can be compared with bereavement and loss.

Emotions experienced by CYP's as the result of parental separation may include: • Anger • Sadness • Confusion • Hurt • Loss of identity within the new structure • Unable to express feelings • Not listened to • Lonely - empty • Fear of relationships

These feelings may result in: • Disruptive behaviour at school, at home, • Self-harm • Alcohol drug abuse • Apathy • Becoming the adult • Make up stories • Unable to form friendships • Nightmares / bed wetting

Changes in modern day society Family values have changed dramatically. The family 'breadwinner' is no longer the mainstay. Equality has allowed women into the work place with matched salaries. Pre-school nurseries, after school clubs (all be it paid for) gives the opportunity for parents to work fulltime. This has led to changes in family structure. The majority of families enjoy the financial benefits giving their children most of what is present trend along with love and guidance to take them into adulthood. Sadly some parents are not able to live together and separation and divorce is the only solution. It is here that CYP's may need support to help them in a non- judgement safe setting helping them to understand what is happening to the family, and early intervention can help.

229 Not all families have joint breadwinners and perhaps it is access to the Social benefit system that may make it easy to 'split up' and become single parents.

There are very many scenarios in our society.

These issues are global and I have identified web sites offering guidance and information.

Web sites http://qingerbread.org.ukifactsheet/22/Action-to-take-when-a-relationship- ends?gclid=0G0x-PNn74CFcldwwodHpgABw http://www.childhope.org.uk/?gclid=CIepl zNn74CFc6WtAoddx8ADq http://www.afccnet.orgfigclid=0SakY30n74CFQeWtAodIyMA-A

Judy Arnold (Cruse Bereavement Care Volunteer) 15 May 2014

230

Appendix 13 Submission dated 27th August 2014 from Malcolm Dear

231

232 From: malcolm dear Sent: 27 August 2014 18:24 To: Jonathan King Subject: Re: Select Committee on the Care and Upbringing of Children

Good evening Jonathan,

I am more than happy for you to publish this email. I would also like to highlight that I am still having problems as the court here in the isle of man said they would register the order in the UK and they have not done this forcing me to fork out more money to do this. whilst my ex wife with mental health issues is allowed benefit in the UK that far out reaches my salary because she has the child and she has mental health issues. also she told the local authorities in the UK that I had abandoned my daughter. this was rectified after I called them. it appears to me that the court system is systemically bias to wards the female parent no matter what the recommendation are for the best interest of the child. I am meant to have fortnightly visitation and minimum three times a week Skype contact I have had five weekends since the second of may three of which fell in a fortnight holiday, out of nine. the legal system both here and the UK do not care that this order is being broken time and again by my ex. thus I do not have any faith left in the family court especially if you are the paternal side trying to do your best and support the child in there best interests. please feel free to call me if you would like more info or clarification

Malcolm Dear,

On 27/08/2014 10:58, Jonathan King wrote: Dear Mr Dear

Thank you again for your e-mail to the above Committee which you sent earlier this year. The Committee is now finalising its report to Tynwald. It would be helpful to know please whether you would be content for your e-mail to be published as part of that report?

Thank you.

Jonathan

Jonathan King Deputy Clerk of Tynwald and Clerk of the Legislative Council Legislative Buildings, Douglas, Isle of Man IM1 3PW

www.islandofculture.im

233 From: malcolmrugby Sent: 12 March 2014 09:02 To: committees Subject:

Unsure if this is a point that you want to look at but two court welfare reports and a social services report stating a child should remain with her dad were gone against in court because of the mother's mental health. The child there for being relocated to the UK with the child's mother. I appreciate the demster has to look at all facts but it appears that if the mother has any issue it has a knock on affect to the decision of the family court. I would like to highlight that in two case in Scotland the child/ren were put in the care of a mother with mental health problems and the child/ren have ended up dead. Hardly what a concerned father likes hearing. Thus I must highlight this mater to you as it is my daughter being relocated to UK because of her mother's mental health. Her mum has tried repeatedly to cut me out of my daughter's life and at the last minute the judge sides with her due to two cases from the UK where a child suffered harm from not being with the parent in both cases the mother who had mental health issues. Yet we have at least two current cases that show this is not the best option.

Again this does not show what appears to be in child's best interests and marginalizing the roll or position of the paternal family

Yours Fraternally

Malcolm Dear Sent from my HTC

234

Appendix 14 Submission dated 18th March 2014 from Stephen Holmes

235

236 Memorandum from G. Stephen Holmes B.Sc. My details To The Tynwald Select Committee on Care of Children — Juan Turner MLC, Kate Beecroft MHK, Phil Gawne MHK cc Jonathetn-K-ing; Pat Ingram; Deborah Brayshaw Subject Collection of Evidence Date 18th March 2014 Dear Sirs and Mesdames, It was just two weeks ago that the [Scottish] Care Inspectorate produced its "Report of an inspection of services for children and young people in the Isle of Man". On Friday, 7' March 2014, you interviewed Patricia Ingram and Debbie Brayshaw as part of your evidence gathering, but both these witnesses work in areas where — 1. they have shared responsibility for children in the Isle of Man; and 2. they provide the services for children and young people on which the Care Inspectorate reported. If you wish to gather evidence, you cannot gather evidence alone from people who's services are "adequate" at best and usually weak; but as we members of the public call it : woeful. I have listened to the hearing of 7th March 2014. The first thing I want to say is that the LAW does not need reviewing! There are three sources for the principles that "authorities" in the Island need to reference BEFORE making any recommendations, (in Private Law), and these are the Children and Young Persons Act 2001, the UN Convention on the Rights of the Child (UNCRC), and the Human Rights Act 2001, the latter containing (at Schedule 1) the European Convention on Human Rights ["EuCHR"]. Note that the CYPA 2001 is introduced as an Act to reform the law relating to children. I wish to start by going back to the mid 1980s. In England & Wales there was an Act of Parliament called the Guardianship of Minors Act 1971; and in the Isle of Man an Act of Tynwald called the Guardianship of Infants Act 1953. Both these Acts allowed a court to confer "rights" on adult guardians of children — the right of custody; and the right of access. The word "custody" [as in this ADULT has "custody of this child"] first appeared in 1577 in the Isle of Man and changed little in the ensuing 375 years. In TWO places, "experts" began questioning these rights conferred on adults by court order — in terms of the Universal Declaration of Human Rights (1948) and the European Convention for the Protection. of Human Rights and Fundamental Freedoms 1950. Independently, but compatibly, the UN produced the CRC [Child Rights Convention] in 1989 and Parliament in Westminster turned the Children Bill into the 1989 Children Act. Interestingly, the CA 1989 is completely compliant with both the UNCRC and the EuCHR. Tynwald was not slow to follow the trend, but its efforts were thwarted by a lack of expertise in the law relating to children; it was not so long ago in the Isle of Man (1927) that a divorce required an Act of Tynwald such as the Mylchreest Divorce Act 1924. And whereas England & Wales had introduced the Guardianship of Minors Act in 1971 and the Guardianship Act in 1973, the Isle of Man had only introduced the Guardianship of Infants Act in 1953, and that Act was based entirely on the 1925 and 1886 Acts of Parliament. [e.g. Victoria 49 & 50 ch. 27]. Until the Family Law Act 1991 was enacted on lst April 1992, "our" Act was Victorian in origin — from 1886. The Family Law Act 1991 was badly named — some confusion had arisen with the Family Law Act 1986 of Parliament [1986 ch. 55] and the introduction to the 1991 FL Act was appalling. But most of it was based on the Children Act 1989, with modifications to suit local requirements. The big change between 1988 and 1992 was that in both jurisdictions, in the Isle of Man and in the combined jurisdiction of England & Wales, the words "custody" and "access" ceased to exist on 01/04/1992 and 14/10/1991 respectively. New concepts entered the language — and these concepts are related to children. But the

237 CA 1989 [and the FLA 1991] contains an entirely new concept — that the court should only make an order if it considers it better for the child to make an order than make no order at all. The CHILD [minor for 11 years] resides with a parent; the CHILD [minor] has contact with the person named in the order, if the court can be persuaded to make an order. I have never heard of a case in the Isle of Man where the Family Division of the High Court has made no order at all, but the law clearly states that "no order at all" is the default. I have jumped ahead — the CYPA 2001 [passed in July 2001, and promulgated on 5111 July 2002] is an Act to reform the law relating to children (as is the CA 1989) and to re-enact Parts 1 and 2 of the Family Law Act 1991, so the badly named and badly introduced (but HR Convention compliant) FLA 1991 was consigned to the dustbin of history on 1St February 2003. But in 2003 we had a non enacted Human Rights Act [2001] — I discovered last year that the UNCRC entered into force in the Isle of Man on 2"d September 1994, although no-one seems to know any of the Articles of this Convention. We had the ludicrous situation from October 2000 where Parliament had enacted its Human Rights Act 1998, so the three sources of children law in E+W were the CA 1989, the UNCRC and the HRA 1998, but the Island only had TWO sources of law being the FLA 1991 and UNCRC to 31St January 2003 then the CYPA 2001 and UNCRC from 1St February 2003: although the EuCHR had persuasive authority. It was not until 1St November 2006 that the HRA 2001 was fully enacted, but again no-one like Mrs Ingram or Ms Brayshaw appears to implement the EuCHR. Very recently (in the middle of 2013) the General Registry / AG's chambers put a judgment online — and this judgment refers to a children matter in the High Court (Family Division) — specifically an "order" made on 5t'' November 2004. In J1183 we find — 20. The order made by Deputy Deemster Williamson recites that, upon the Appellant undertaking that he would abide by the terms of the aforesaid orders of the [English] County Court : `IT IS DECLARED 1. that the said orders of the [English] County Court registered in this Court are of full effect and enforceable within the jurisdiction of this Court that is to say within the Isle of Man and that this Court is not empowered to vary such Orders. 2. That the Respondent have indirect contact with the said children.' Further on in this document is 4. For the avoidance of doubt it is declared that the Order for indirect contact between the [Appellant] and the said children made in the [English] County Court on the [date] and registered in this Court on the [date] remains the effective Order for contact between the [Appellant] and the said children. IT IS THE CHILD who has CONTACT with "the person named in the order" not the Adult Applicant or Appellant who has contact with the "said children" — that was an "Access order" and that "right of access" was removed from law in 1991 in E+W and April 1992 in the Isle of Man. Judgment J1183 mentions Deputy Deemster Williamson, and AK Williamson used to be High Bailiff in the lower criminal court. He was appointed Deputy Deemster on l' September 2002 and implemented a policy of "adversarial disputes over children" in the Family Division of the High (civil) Court. Pat Ingram mentioned sending reports to the "family court" but Pat Ingram is in the probation service which is part of the criminal justice system — and Private Law hearings about children are in the civil court — it is disastrous having a probation service supplying reports to the civil court! In 2008 a Court Welfare Officer began a report with — "In the Court of Summary Jurisdiction in front of the Deemster on 29th November 2007". The officer did not know what court she was in! Ms Ingram said that the file on Mr Walmsley's children was still open — but despite being asked to assist in a case in 2008, the CWO "closed the file" by 28111 July 2008! In England, a Private Law matter with relation to a child is listed as Re: A (A Child) or Re: H (Children); but in the Isle of Man a children matter is listed as A v B or P v P or even Holmes versus Holmes. Orders are made about the parents, but any order made about the Respondent or the Applicant

238 or the Appellant is an order about an Adult and is therefore ultra vires. Ultra vires documents are void ab initio — void from the outset.

In a list of Departmental duties I noted that four Departments have shared responsibility for children in the Isle of Man — DHA, DSC, DEC, and DH (Home Affairs, Social Care, Education & Children and Health), but in reality, responsibility for the Care of Manx Children begins with the Chief Secretary's Office and the Attorney General's Chambers and includes especially the General Registry AND the Deemsters. I know that Deemsters Cain and Kerruish and High Bailiff AK Williamson were sitting "on the hill" when the Children and Young Persons Act 2001 was promulgated at Tynwald on 5th July 2002, so these three should have known that we now have an Act to reform the law relating to children. Shortly after that, and before the 2001 CYP Act was fully enacted on 1St February 2003, AK Williamson was appointed Deputy Deemster (in the Civil Divisions of the High Court) where, according to his successor Mr ATK Corlett, he bore virtually single-handed all the work of the Family Division. Years earlier, the High Bailiff Henry Callow was appointed Second Deemster — moving from the lower criminal court to the upper criminal court (General Gaol Delivery). Deemster Callow worked well in the CGGD. Deemster Williamson worked appallingly in the High Court — the civil court — because he had no experience in the law relating to minors or children, and the General Registry had started listing children matters as Kramer versus Kramer. There is a case in 2001-03 MLR where the Deputy Deemster erred in an "instant decision". [See Note 40 in Kirkham v Kirkham]. "My case" is not "private" because on 5th November 2004 Deputy Deemster Williamson ORDERED that his two paragraph declaration listed above be lodged with the Police and served on a head teacher — it became well known in the DHA and DE (as was) and DHSS that Deputy Deemster Williamson had declared "Respondent have indirect contact with the said children" BEFORE the Court Welfare Office entered the fray. I refused to deal with Patricia Ingram after I felt that she lied to me in April / May 2005. Ms Ingram decided that a declaration that stated "Manx father / respondent have contact with the children" was a valid section 11(1)(b) Children and Young Persons Act 2001 "contact order" — the default is "no order at all" and Williamson had never considered the "no order option". As can be found in J1356 and J1183 "there was no legitimate basis upon which the Deputy Deemster could have made the order which he did." But the so-called "declaratory" order was defective in another way — it was an order about an adult, and the clue to the CYPA 2001 is in its name and introductory phrase — it is the Children and Young Persons Act 2001 and is an Act to reform the law relating to children. I have found that just three advocates on the Isle of Man understand this — Claire Faulds, Paul Beckett and Jason Stanley [none of whom practice what is laughingly called "family law"] — the rest of the "legal profession" who engage in "family disputes" are interested in money and winning for their client — nobody actually represents the Manx children who are the subject of an application to determine their future upbringing. There are now two Acts that applications can be made under — the Matrimonial Proceedings Act 2003 [enacted 01/04/2004] and the CYPA 2001: and in considering a Form Cl, the HRA 2001 should be considered as well. The Form Cl is the form a member of the public would use to kick off an application to determine a question with regard to a child, but the form available from the Government web-site that is courts.im begins with the word "Between". The equivalent Form Cl in England + Wales asks first for the name of the child. The CYPA 2001 is based entirely on the CA 1989 of E+W. The experts who developed the CA 1989 took about six years to have the Bill debated and passed, and then it was another TWO YEARS before the CA 1989 became law in E+W. Similar experts in the UN in Europe and North America took TEN YEARS to develop the UNCRC. In December 1991 the UK agreed that all children and all the rights contained in the UNCRC, and the Convention became law on 16th January 1992. The Convention became law in the Isle of Man on 2' September 1994, but nobody seems to know about it. Throw in to this ignorance that an application about a Minor is listed as an adversarial dispute, that the

239 Deputy Deemster had never dealt with a Children matter before 1' September 2002, and that the "Court Welfare" office is in the Probation Service, then we have a recipe for disaster. Some officers (both Administrative and Crown) in England are no better, but the senior courts are better placed to make amends. In the Island, when the false instrument issued by AK Williamson on 5th November 2004 was "quashed" his colleagues acted in a biased manner by making "no fair criticism" of the child-rights abusing charlatan. [I am calling the former Deputy Deemster AK Williamson a child- rights abuser, and I have put my view in the public domain; as Deemster Doyle has put his view that "no fair criticism" can be made of the charlatan Williamson in the public domain]. I am in dispute with Deemster Doyle because he was partial in 2007 and 2008 and erred in law. Deemster Corlett made a judgment in 2009 making a "shared residence order". On 18th May 2004 I applied for a shared residence order, but my application was dismissed by the charlatan Williamson. Deemster Andrew Corlett arrogantly described his judgment as a paradigm case — made five years after the High Court of "justice" in the Isle of Man had the opportunity to make a paradigm shift in children orders — but we had a High Bailiff as Deemster in the civil court for five years — and the damage caused is irreparable. I doubt if he governed any children matter properly.

Interviewing Debbie Brayshaw was a waste of time because the DSC only dive in if their "at risk" criterion is met [but nobody knows how they arrive at that criterion]. Ms Ingram makes reports, but usually the "court welfare officer" actually puts the child at risk. I complained about Ms Ingram in 2006, and after a year, (in April 2007), a Mr Lee Harrison found that my complaint had no foundation. Then in October 2007 the SOGD found that there was no legitimate basis upon which the Deputy Deemster could have made the order which he did on 5th Nov 2004, but I could not be bothered re-complaining about Ms Ingram. I suspect that this Select Committee will find nothing wrong with the services provided by DHA, DSC, and DEC [I cannot comment on the Department of Health] but the General Registry will continue to set parent against parent and the Deemsters will make orders with respect to adults and generally abuse the rights of our Manx children, as they have done since 1" February 2003 and probably from 1" April 1992 to 31St January 2003. The Committee must investigate the General Registry because that is where all the problems start — with the listing a children matter as a dispute between parents. I use the mantra — The Deemsters: abusing the rights of Manx children since 1994. On 3' September 2007, Deemster Doyle made an order from the civil court that got me arrested in Birmingham, England on 5th September 2007. In November 2007 I received £2,000 compensation from West Midlands Police, but the General Registry and Deemsters Corlett, Doyle and Roberts have prevented me making any claim from the General Registry or the Isle of Man Constabulary for arrests in 2005 and 2006. Needless to say, it was a CIVIL COURT so-called "order" that caused the arrests in the Isle of Man and in England. All this information is in the public domain, but public officials in the Government administration believe that the Deemsters know what they are doing; that advocates act in a lawful manner; and that they themselves are doing right. But you only have to read a few articles of the European Convention on Human Rights (now LAW) to realise that an order that talks about a father having "contact" with his children in the Children Centre is not lawful because the children are denied their right to a family life with their father. I have masses of paperwork, none of which says "IN CAMERA" [or if it does, it was sent to the police!] which I would be willing to share with the committee. The culprits are the officers in the General Registry — who seem to operate in the 1970s & 1980s — I am sure that the "culture" is that of bringing the press in to divorce hearings so that the dirt can be aired in public [which is what happened in the 1970s]. Perhaps the First Deemster should be asked to give evidence to show that he and his Second actually take note of the CYPA 2001 which is an excellent law. It is the interpretation of such Act that is the problem — interviewing public officials like Ms Ingram will not solve the problem because Advocates present to the Deemsters and there is no program of CPD amongst advocates members of the Isle of Man Law Society. The error by the Court Welfare Officer when she used the term "Court of Summary Jurisdiction" is a perfect example of the utter incompetence of one of those involved in providing a service to the court.

240

Appendix 15 Submission dated 21st January 2014 from Anne Kelly

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242 Ms P. Anne Kelly

21st January 2014

WITHOUT PREJUDICE:

The Select Committee for Philip James Walmsley and Family Matters dealt with by State.

Dear Select Committee.

Re: Philip James Walmsley Petition of Grievance.

I write to reiterate every word Michele Wirtz has wrote in her email addressed to Phil Gawne and more of my experiences in the Family Court.

During my support of Michele whilst studying Family Law through the Open University I was shocked to see that the law is adequate but the Manx Judiciary do not abide by the law.

I helped Michele get her case together using said and just law in the Children’s Act, however I was shocked to realise that the High Bailiff did not even read her submissions and only listened to her ex-partner’s advocate. Mr Dobbs who is an osteopath and I believe he treats members of the law society and judiciary to get such an absurd according to the law result that flies in the face of the spirit of the Children’s Act 1989(UK) & 2001(IOM).

The law society ran her out of money to the sum of £12,000.00 by misleading her and leading her up the ‘garden path’, Simcock’s are the culprits, however, the advocates all work it between themselves to get the result already decided on beforehand to the favour of the parent that has the most clout with members of the judiciary.

Against best practice Ms Wirtz children were cut out of her life after the court welfare offices delayed by 3 weeks assessing the children competently and within the spirit of the CA 2001 and allowed the Father free range to alienate the children against the Mother interrupting the Mother Child bond, please see attached Tavistock Agenda,

I am comparing to my own family law case that ran smoothly according to the law and was arbitrated on by the genuine and good, Deemster Michael Kerruish some 17 years previously, however the ancillary matters took as further 15 years of legal aid by the criminal minded and double dealing advocates milking the public purse.

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I have supported another Mum whose child was handed over to a paedophile father and the loving Mother cut out of the child’s life till the child in 14 years old, I would like the committee to bear in mind that these are incidences that will continue to happen until the legislature take a firm stand against these activities by the powers that be that the constituent’s seem to be powerless and unable to prevent.

According to my legal studies the legislature can and does have the power to impeach members of the judiciary and the executive in matters such as these require.

This submission is true to the best of my knowledge and I will swear an oath on its contents.

Yours faithfully

Anne Kelly. enc: Tavistock Agenda Information.

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Appendix 16 Submission dated 20th January 2014 from Michele Wirtz

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246 Subject: FW: phillip james walmsley petition for redress of grievance / Mr Johnathan King

On 2014 J-guer 20, at 22:43, "wirtzmichele Wirtz" wrote:

Dear Mr Gawne, I am writing in response to the article in the Manx Independant dated Jan 2nd 2014 and I feel I have positive and relevent experience to comment and am content for my submission to be published after further consultation. I feel that the family courts have broken down and that an independant panel should be appointed to investigate what I believe to be miscarriages of justices. the courts or goverment with an Independant Body should now be open to look forward in trying to be more efficient in dealing in family matter especially where children are involved as time delay is crucial in these matters in the wellbeing of the children I have a email from Patricia Ingram, the Director of Community Opertions stating as fact that due to lack of resources that CWO are not trained in Parental Alienation, this needs to be addressed imediately. Mediation via Childrens Centre should be compulsory before it gets to court as this is in the childrens best interests,co parenting should be insisted on unless parental responsibilitie is revoked The United Nations and the Childrens Act 1989 clearly states that children should keep a relationship with both parents without suffering conflicts of loyalty, extended family members and not to be involved inappropiately in arguements,rows or conflicts,the courts fail in this Act and this need to be addressed I feel the American judical system should be given serious consideration and could be adapted to Manx Law, We are still behind the British Judical System/Family Court Colabrotive justice should also be considered 8 years of age is to young to know their own minds, courts to not prosecute children under the age of 11 as they are deemed not to fully comprehend their actions and do not know their own minds CWO did not recongise Prof Forman [now retired] who was head of the Youth and Young Adult mental health unit and specializes in Parental Alienation, I believe this to be due to lack of communication and knowledege of what available resources there are Why doesn't the Manx Law follow these guidlines where ultimately the children suffer also estranged parents and extended family, Manx Law are failing in the Human Rights Act, United Nations and also in the children Act I am willing to speak and show evidence in more detail if neccessary DOE are failing in Parental Responsibilities as they do not communicate with both parents regarding accidents at school, parent evenings etc Doctors are also failing in this by not notifying both parents when incidenties occur Police are failing in this when children come into contact with the police Legal aid where family court is involved should not take 6 weeks and also should be properly funded, I understand Legal aid has actually been cut Any time delays are paramount as stated in the Childrens Act it is of detrement to the child Counselling is the only way forward, should be compulsory and when not followed, the parent should be warned, fined or imprisoned as per the American system 1

247 21st Annual Conference, Southampton 2010, Paul Coleridge is a good read I will be sending more information as i remember as i am currently suffering depression and anxiety and have been diagnosed showing signs of post traumatic stress all bought about by the seperation from my children, i have not had my parental responsibilities revoked nor have i been deemed an unfit mother, also having to deal with the judical system and being made to face a abusive ex partner and advocates who seem only interested in the money There is so much more i wish to comment on but i have just been made aware of this article, it was not widely publised. Sincerely M G Wirtz

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Appendix 17 Submission dated 30th January 2014 from a member of the public

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250

-----Original Message----- From: [name] Sent: 30 January 2014 12:05 To: Gawne, Phil (MHK) Subject: Re: Social Care

Sent from my iPhone On 30 Jan 2014, at 11:46 am, [name] wrote:

Dear Phil Gawne (MHK)

This is an edited version of the email I sent earlier. I noticed a few mistakes in the other one

I believe a select committee has been set up to look into the Department of Social Care.

I've been in contact a few times with Kate Beecroft and she's recommended I contact you as my MHK.

I'm currently having major problems with Social Services.

My baby is currently on child protection and I've been classed as a perpetrator. This I find highly offensive.

The system has let myself and baby down. I have never been charged for any offence, I have told SS that they have it all wrong and that evidence from the police will prove that my ex has actually lied on every occasion, however SS never bothered to act on this.

I have been bullied by SS to sign contracts which I've not done, I've been told that if I don't sign contracts then it makes no difference the contract still stands.

(So why bother wasting money on ink and paper) I've been constantly blackmailed by SS. They forced me to go on a Domestic Violence course yet I'm not the perpetrator, my ex is.

My ex has been drunk several times whilst pregnant, she's lashed out at me several times but then twisted the truth and tried to get me in trouble. On each occasion the police have been involved and I've never been charged, due to lack of evidence.

I've had to re-open the police inquiry to prove my innocence because SS wouldn't open it. I find that SS are very manipulating, controlling and very sexist. In the last meeting I had with them they admitted all they care about is the woman and Children.

I have reports to back up all of this.

Nothing has been investigated properly, each time I've complained to SS about my ex's drinking they've never acted on it. Once I actually got told by a Social Worker that it was my fault she was drinking.

I've sent an email of complaint and then got blackmailed by SS, they told me by doing this I look like the manipulator and controlling type.

251

I am absolutely disgusted with this department. Once again they're are making big, big mistakes. Leaving the children in the care of the wrong parent.

I haven't drunk alcohol since my baby was born and was never a big drinker anyway. My ex on the other hand, only on Sat night stayed up with her sister and mate drinking until 5am. I was disgusted by this so I took my baby away from her on Sun at 12pm. Because Social Services have said I can't take the baby to my parents until they've done checks mean I broke the rules.

So basically SS think this behaviour is acceptable and think it's ok to torture me for no reason and allow my baby to be in that kind of environment

SS say they are basing this case on probability, as I'm related to serving and many ex Police officer's I have good knowledge of the law and I know that in the case of 'probability' is probable that my ex lied to the police and Social Workers.

I've never been to court for any of this as I was never charged. Therefore no court has ever made an order on me, SS are making up rules and breaching my Human Rights and my child's.

I've looked into SS procedures and that proved my claims that they are breaking rules and making them up as they go along.

SS are liars, manipulators, bullies, sexist, controlling and blackmailers.

I have been threatened that if I don't turn to meetings it will be deemed as not complying which looks bad for me and means I won't get to see my baby so much. I have had to take time of work and lost money because of this, I am a government worker and my boss is becoming increasingly frustrated with Social Services.

Little do Social Services know but I've been speaking to care workers past and present, police officers past and present and ex social workers, all of them say unless a court makes an order then SS have no right to make rules up and make threats about taking the children away, which they have been doing.

Each of these people have told me how SS workers lie and blackmail all the time.

Social Services have been ruining my life and I fear they've ruined many family's lives.

Even the Police Sergeant who I called to the meeting the other day told SS that this meeting was unfair as they hadn't looked at all the facts and he said that worryingly they've probably made the wrong decisions against many families due to there lack of investigating.

Could you please bare all this in mind. It's time this department had a big shake up and it's time certain Social Workers were reprimanded for incompetence and injustice.

Kind Regards [name]

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Appendix 18 Submission dated 11th June 2014 from Mr Frank Hanna

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254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270

Appendix 19 Mediation Agency paper dated June 2008

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272 Working Party Mediation Programme Consultation The Mediation Agency’s Response to the Working Parties Request for Information By Dr. Frank Hanna & Nancy Peterson, M.Med.

June, 2008

273 Working Party Mediation Panel

Table of Contents

1 Preamble & Introduction ...... 3

2 Is a mediation service considered to be beneficial?...... 4

3 Should the mediation service be restricted to...? ...... 5

1) Modest Family Disputes ...... 5

2) Family Disputes ...... 5

3) Modest Civil Disputes ...... 5

4) Civil Disputes ...... 6

4 Should the mediation service be compulsory or encouraged and should it be taken into account when the Court is determining costs? ...... 6

1) To answer the question of “Compulsory Mediation” ...... 6

2) To answer the “Costs of Mediation Programmes to Courts” ...... 7

5 Will mediation prove cost effective for potential litigants? ...... 7

6 Will mediation prove cost effective to the Legal Aid Fund? ...... 7

7 Where should mediation be made available? ...... 8

1) At any time during Court proceedings ...... 8

2) As a preventative measure when there is conflict which could circumvent the issue of court proceedings ...... 8

8 Can parties to a mediation have the benefit of legal representation / if so, should legal aid be available? ...... 8

9 Which office will be responsible for the provision of the service i.e. responsible for the establishment of a mediation panel / administration / provide venue facilities / provide funding/training ...... 9

10 In Closing ...... 9 2 Page

The Mediation Agency Web site: www.mediationagency.com Phone: 01624 830 024 Email: [email protected] or [email protected]

274 1 Preamble & Introduction We are pleased to have been asked to give our perspective on mediation and its potential applications on the Isle of Man. This is a unique opportunity for the Isle of Man to be at the leading edge of providing a working alternative conflict resolution choice for citizens. We have been impressed to learn this kind of leadership is not new; in 1881 the Isle of Man was the first in the UK to grant women the right to vote. Now you have an opportunity to make history again and show the way not only to the UK, but the whole of Europe, by installing a working mediation programme within your court system. Needless to say we would be honoured to be any part it. To begin our submission to the working party, we thought it would be helpful if we introduced ourselves by laying out our backgrounds and qualifications:

Frank Hanna, D. Med. Having practiced as a solicitor for over 30 years in Northern Ireland, Frank specialised in the fields of personal injury and employment law. He was the senior partner of Francis Hanna and Company, a medium to large firm by Northern Ireland standards. Much of Frank’s business took him to the United States and during the 1980s and 1990s’, he became aware of the growing use of mediation as a process for the resolution of court actions of different types. At that time, Frank was a member of the American Trial Lawyers Association and had much contact with practitioners as the mediation process was developed. Frank became very curious and in the early ‘90s attended a course of study at Harvard Law School which equipped him with the essentials to become a mediator. He later added further study at Pepperdine University in California. At this time in the 1990s’ very few people were contemplating the use of mediation and Frank availed of an opportunity to take early retirement in 1999 and moved to Arizona where he, along with partner, Nancy Peterson, co-founded The Mediation Agency. Frank’s career blossomed, both as a practitioner and as a teacher of mediation. Subsequently, Frank was retained by the United States government as an Independent Contract Mediator for the Equal Employment Opportunities Commission (the United States version of the EOC), and The Mediation Agency, with Frank at the helm, was hired by a number of major cities (Phoenix, Mesa, Chandler, Gilbert) to teach and install adult peer mediation programmes within their cities. In 2003 Frank was elected President of the Arizona Dispute Resolution Association which was, essentially, the governing body of mediation in Arizona. Frank’s first book, Conflict Resolution and Mediation in the Real World, was published in 2004. Health reasons took Frank back to the UK in 2006 and subsequently moved to the Isle of Man in August of 2007. 3 Page

The Mediation Agency Web site: www.mediationagency.com Phone: 01624 830 024 Email: [email protected] or [email protected]

275 Nancy Peterson, M.Med. With a career that has been hallmarked by an interest in helping people, Nancy has a substantial background in mediation, as a mediation trainer and related coursework writer, workplace conflict counselor and bespoke mediation programme designer. Along with partner, Frank Hanna, Nancy co- founded The Mediation Agency in 1999. Since its inception, it has become one of the most successful mediation and conflict maintenance service providers in the USA and the UK. Additionally Nancy is a journalist, a web site designer and created and maintains The Mediation Agency web site. Within the field of mediation, Nancy has worked with the USA Justice Department as a part of their Mediation Programme, as a mediator for the Attorney General’s office, and for the Adult Probation Court Mediation Programme in Arizona. From 2000 until 2002, Nancy used her mediation experience as a volunteer group counselor in the substance abuse programme for Salvation Army and found the experience to be rewarding as well as enlightening into the power of mediation concepts used in counseling programmes. In 2004 Nancy created The Mediation Dictionary, an on-line resource of the terminologies and language of mediation; http://www.mediationdictionary.com In 2005, Nancy developed an on-line course of study for Cloverdale College in Indiana. She designed it with a focus to help students understand the basics of mediation and to inspire them to learn more. In 2006 Cloverdale College was officially made the undergraduate school for The Graduate Theological Foundation and Nancy was instructed to design a bachelor’s degree programmed in mediation. The Cloverdale College bachelor’s degree in mediation (B.Med.) was publicly presented in July of 2006. From 2005 to 2006 Nancy held the prestigious title of Director of Education and Professional Development with New York State Dispute Resolution Association (NYSDRA.) She continues on as a consultant to the Executive Director and serves on their certification and training committees. In 2007 Nancy moved to the Isle of Man along with partner Dr. Frank Hanna.

2 Is a mediation service considered to be beneficial? Those who have worked closely within the world of mediation will tell you, unmistakably, that mediation works because it is less expensive, finds more expedient resolutions, and may actually improve the relationships of the parties. The reality is that mediation enables a structured form of safe and neutral communication. The process is facilitated by a trained mediator endowed with the skills to take the most stubborn of participants past their impasse of communication and on to form resolutions that last. It is worth remembering that most statistics will show that the vast majority of civil litigation matters get settled before the necessity of a court hearing. Figures in the UK have suggested that less than 10% of cases where a High Court Writ is issued actually go to a court hearing. The more disturbing percentage is that the vast majority of those cases that settle actually do so within 48-hours of the date of court, often after years of stalemate. There are many conclusions to be drawn from that, but the most obvious one is that they are resolved because the parties are finally focused on talking; which is precisely what mediation seeks to do at a much earlier stage in the conflict. This saves time, money, and most importantly - reduces the emotional hardship of parties forced to endure a long drawn out court battle.

Most practising lawyers will readily agree that the resolution of litigated cases invariably come about as a 4 result of negotiation. Equally it is accepted that those negotiations do not get properly focused until the door of the court is in sight. Sad fact, but unquestionably true. Page

The Mediation Agency Web site: www.mediationagency.com Phone: 01624 830 024 Email: [email protected] or [email protected]

276 It is the experience of every state in the United States of America that the introduction of mediation into the court process assists, dramatically, in the timely resolution of litigation – thereby reducing the burden placed upon courts and saving enormous sums of money as a result.

3 Should the mediation service be restricted to...? The uses for mediation in resolving conflict are infinite; its range of use, scope of benefit and situational flexibility make it the chameleon of conflict resolution. It is the oldest method of peacemaking known to mankind – talk. With that said, it is our firm belief and recommendation that the mediation service should not be restricted in any way, and indeed encouraged to be expanded where and when possible as a form of conflict resolution. In the state of Arizona, with which we have quite a lot of experience, mediation was mandated particularly in the lower courts. Participants would come to court with a complaint and be remanded directly into mediation. The resulting agreement, if one was reached, would then be reviewed and ratified by the court. In the higher courts the process was slightly different. Special judges were appointed (Judges Pro Tempore) whose function was to oversee settlement conferences. In effect they were mediators who would take charge of a case in the early stages and would simply mediate without using any judicial authority. These hearings were informal and were not conducted in a judicial atmosphere and usually in the judge’s private office. We have trained a number of lawyers who subsequently were appointed to this post because of their mediation skills and training.

1) Modest Family Disputes

Arguably the most important and valuable use of mediation, this is an area where mediation does great good. Family matters are always the most emotive and potentially destructive type of conflict. All members of a family embroiled in conflict are affected; even extended family, grandparents and innocent children.

The active result of such conflict can be devastating, including; alienation of family ties, depression, violence, alcohol / drug dependency, and even suicide or murder. Unfortunately, using litigation to resolve family conflict issues does nothing to resolve the potential of lasting emotional problems, and indeed can serve to exacerbate or compound the core issues by its’ nature of awarding one party as a “winner” and another as a “loser.” It is our sad experience that in family law, there are rarely any true winners.

Mediation allows families to have a guided and safe communication session where grievances may be aired. A Family Mediator understands the many nuances of family interaction and allows for emotional moments where much can be learned or communicated to other family members. It is a safe, neutral environment that provides a way forward and even may restore healthy relationships.

2) Family Disputes

More complex family issues, such as divorce, or high revenue family business dissolution, have the same emotive and perilous cause and effect as stated above. A trained divorce or professional business mediator can salvage and improve relationships that may need to exist following a break-up. This is the most well known and popular use of mediation, primarily due to its success in creating lasting resolutions and restoring communication that encourage a more civil ongoing relationship for the future.

3) Modest Civil Disputes

This is the area of conflict where The Mediation Agency has had a vast amount of experience. Nancy 5 served as Director of Education for NY State Dispute Resolution and was in charge of the training Page resources for some 62 community mediation centers throughout the state.

The Mediation Agency Web site: www.mediationagency.com Phone: 01624 830 024 Email: [email protected] or [email protected]

277 These centers focused on dealing with the ongoing issues that plague councils, police departments, code enforcement officials, and small claims courts. Centered on helping people find resolutions that restore peace, community mediators are the unsung heroes of neighbourhood justice. A mediation programme would not only resolve many of the issues that plague council members and law enforcement; it would improve neighbour-to-neighbour relationships thereby making home life more peaceful.

As an aside, you have at your disposal a ready resource of mediators from our last two classes. These are potential volunteer mediator practitioners waiting to take up the gauntlet of court or community mediation. They are eager to help provide such a valuable service to the citizens of the Isle of Man.

4) Civil Disputes

Civil disputes, or “Small Claims”, are another area where mediation has enormous value both to the parties and the court system. Local courts spend an enormous amount annually in helping citizens find justice. Add to that, the cost to litigants in hiring an advocate can often, over the course of time, even out- weigh any potential gain – and sadly we all know there are no sure things in judgments; once the litigation route is chosen by a person, the matter no longer is within their control and they may or may not be victorious. Finally, waiting for justice can be frustrating to people who, quite frankly, have better things to do with their time.

Mediation can provide a way forward with resolutions that are more expedient, less expensive, and if need be; legally binding. These agreements can be ratified by a court to assure their validity, or perhaps overseen by Clarks of the court as is the case in the Justice Courts of almost all American states. These contracts or agreements tend to be upheld by the parties as they are resolutions that were created by the owners of the dispute and not mandated by a judgment.

4 Should the mediation service be compulsory or encouraged and should it be taken into account when the Court is determining costs? As previously observed, the Isle of Man is in a unique position that it is contemplating an introduction of mediation into the conflict resolution process as an alternative, complementary system to litigation. Again we can do little better than refer to prior experiences in different countries.

1) To answer the question of “Compulsory Mediation”

A good mediator helps people focus more clearly on outcomes and resolutions that are positive both for 6 today and the future. The mediator clears the air so to speak, thus enabling people to think again with a Page more unobstructed and logically focused mind on real-world solutions that last.

The Mediation Agency Web site: www.mediationagency.com Phone: 01624 830 024 Email: [email protected] or [email protected]

278 2) To answer the “Costs of Mediation Programmes to Courts” The cost of providing a mediation service to the public is drastically less than providing a litigation-ready courtroom complete with Judge, staff, equipment, and court facility costs. Most mediators, in particular those who have only just completed their training, welcome an opportunity to use their talents within their local court mediation programme. Some courts opt to compensate mediators for travel costs, and or a flat fee, still others provide a donation scheme whereby parties can offer some payment to their mediator if desired. In any case, what you will find is mediators want to mediate. Most are people who have a mindset that is focused on doing something positive within their community, and professional compensation, at this level, is of lesser importance. Mediation provides a more substantial validation of the process people take to find resolution to conflict. Within this process the individual parties become involved in finding a mutually satisfactory resolution of their difficulties and may even find a way to resolve a portion or all of their former good relationship. As an example of this success ratio, Frank was privileged to be a part of a mediation programme run by the Federal Government in the United States. The agency in charge of employment discrimination is the Equal Employment Opportunities Commission. They perform a function almost identical to that of the EOC in the UK. In practical terms what happens is that any reference to the agency of alleged discrimination (Sex, religion, race, age, or disability) is passed immediately to the mediation section who instructs a mediator to find if both parties are willing to mediate. If the answer is positive, then the matter is referred without delay to either a staff mediator or an independent contract mediator. Mediation then followed within days and well over 80% of all cases were resolved. Over a five year period Frank’s success percentage was 92.85%. This reality reduced the reference to court time dramatically and as the mediation programme grew in popularity from its inception in 1999 more and more employers bought into the idea and it is a hugely successful programme in the United States. In almost all of the states in the United States of America mediation, at certain levels of dispute, is compulsory. In some states not only do you require mediation before you can proceed with the case, but subsequently you will require further mediation before an appeal and further mediation again before a third appeal. In Canada it is also now compulsory under certain circumstances.

5 Will mediation prove cost effective for potential litigants? The answer to this question is emphatically yes! In terms of money and emotional cost – which often outweighs the financial burden. When we referred earlier to the statistics with regard to the Equal Employment Opportunities Commission, we saw cases where resolution was obtained within five or six weeks of the date of the alleged discrimination. In other words, from start to finish the entire case lasted perhaps an absolute maximum of three months. Conversely, if the same mediation had failed, that three months would have become a minimum of three years. It takes little imagination to realize the potential savings to parties, and their families. The other reality is that the mediation process, being entirely neutral, allows potential litigants to appear without representation in certain types of cases, thus reducing their potential liability to whatever the cost of the mediation, or their portion of it, might be.

6 Will mediation prove cost effective to the Legal Aid Fund? Once again the answer must be in the affirmative. We believe in the UK already certain cases are not even eligible for legal aid consideration unless and until they have gone through the mediation process. It is very hard to imagine any type of civil action which is not suitable for mediation. If a case is submitted to mediation and facilitated by a competent mediator, the greater likelihood is that it will resolve 7 successfully. This will free up the resources of Legal Aid to focus on those few cases deemed not suitable

for mediation The vast majority of cases do get resolved in mediation. Consequently the drain on the Legal Page Aid Fund and staff should and would be substantially less.

The Mediation Agency Web site: www.mediationagency.com Phone: 01624 830 024 Email: [email protected] or [email protected]

279 7 Where should mediation be made available? It is very difficult to imagine a case type where mediation is not appropriate. Although we have concentrated in this submission on exploring the civil side of legal issues, we think it is important to mention that mediation can provide many benefits for criminal cases using practices such as restorative justice, which seeks to addresses the long-term emotional effect of violent crime on both victim and perpetrator. Obviously not all violent crime cases are suitable for this kind of mediation, but with the right programme, the benefits can be immense to the public. Additionally, we do not see the benefit of confining mediation to modest cases, or small claims type issues, as the ultimate potential of mediation embraces every level of case type. Within Frank’s private practice, his case load varied from the smaller type of cases as seen in the Justice Courts of Arizona, to cases of huge importance both of monetary value and significance. By way of example, as a private practice mediator Frank once mediated the case of the ownership of a trust fund in the Bahamas worth an estimated 33 million dollars. There were in existence, four sets of legal proceedings in four different jurisdictions each involving three separate parties prior to the commencement of the mediation. It was resolved after nine days with a resolution that the legal process simply could not have contemplated given the complexity of emotion surrounding the family owned business.

1) At any time during Court proceedings

Allowing Judges to offer mediation, within certain circumstances, would be very effective and even help to restore a more civil relationship between parties. Judges know that by handing down a judgment it will direct people as to what they must do by court order, but it does not resolve many of the enduring issues of an ongoing and often troubled relationship. This is most frequently witnessed in divorced parents and the subsequent rows that follow in divorced co-parenting. Even during proceedings, Judges who are given greater flexibility by being able to order parties into mediation, for even a portion of their issues, such as custody or visitation, can be very beneficial in creating outcomes that are more balanced and encourage a better relationship for the future.

2) As a preventative measure when there is conflict which could circumvent the issue of court proceedings

Mediation could be utilized as a structured court policing measure and at the will of the Judge; such as when there is a heightened level of conflict during the litigation process, in other words emotions that have escalated to such a level that court actions become even more difficult or impossible to resolve. In such an example, a Judge could remand parties to mediation to resolve a portion, or their entire dispute in preparation for a final decree.

8 Can parties to a mediation have the benefit of legal representation / if so, should legal aid be available?

Firstly, we want to make it clear that one of the most formidable reasons mediation works is it recognises and empowers the owners of the dispute to negotiate their own resolution. Additionally parties are made aware that by trying mediation first does not negate their right to pursue litigation at a future date should mediation fail. This is strongly protected by the signing of a confidentiality contract by all parties, witnesses and mediators prior to the start of the mediation. This creates the knowledge that on the day,

the parties have control of any potential resolution. Equally they understand that if talk breaks down, and 8 the mediation ultimately fails, they will have to pursue other means of resolution where decisions may be made for them. Page

The Mediation Agency Web site: www.mediationagency.com Phone: 01624 830 024 Email: [email protected] or [email protected]

280 Simply stated, mediation empowers the people who “own” the dispute - a good mediator only acts as a skilled guide through the process. As such, parties are always welcome to bring their advocate to the mediation, and indeed often it is helpful to have them on hand. More often than not, people choose to come alone to their mediation or bring a spouse or friend for support. It is important to state that a properly trained mediator will not disadvantage anyone during the course of the mediation, whether or not there are legal representatives on hand or not. He or she will also have the skills to offset an imbalance when one party is represented and the other is not. In Frank’s experience with the EEOC in the United States, he recalls there was legal representation in probably 50% of the cases where he mediated. There are many arguments as to the benefits of providing legal aid for mediation and they can be counterbalanced by those arguments that suggest that legal aid should not be available until mediation has been tried honourably and failed. This would obviously save on the legal aid funding and advocate resources. By way of caveat, great care needs to be taken to ensure that the mediation process is not diminished in any way by reference to it either being voluntary at any level or something less skilled than the normal legal process. It is powerful, fulfilling and has, as previously stated, scope for the resolution of issues that goes beyond that of any legal process.

9 Which office will be responsible for the provision of the service i.e. responsible for the establishment of a mediation panel / administration / provide venue facilities / provide funding/training

Using the USA as an example, court programmes are mostly manned by using a carefully chosen volunteer mediator staff. We were in a position to learn much about the operation of such programmes as we trained most of the court mediators for the state of Arizona. It was a great relationship for us as trainers because it enabled us to offer our students the benefit of gaining experience as mediators following their studies. Court operated mediation programmes were typically housed in a government owned building or available courtrooms. The working organisation of the programme was established and controlled by adopting a formulaic system of conflict resolution; for example court designed forms that allowed non- lawyer mediators to draft a legally binding agreement. These “contracts” were then subject to review by either a judge or court clark to verify their legality and to ratify them into public record. The daily record keeping of mediation files was typically handled by the mediator in charge of their own cases. The courts found that once the system was in place, it ran itself smoothly with very little intervention by court staff. As stated earlier within this submission, we are proud to say we have recently completed two Isle of Man classes resulting in a number of mediators who are eager to gain experience. They would welcome an opportunity to work within an Isle of Man court programme. We would be interested in helping you to develop such a working programme and act as advisors and coordinators to aid in the process on a continuing basis.

10 In Closing Many organizations have tried to involve themselves in the installation of mediation programmes and have not been successful. There are some fundamental realities which really need to be addressed. Firstly, mediation, properly conducted, is an enormously fulfilling and effective way of resolving issues that regularly come before a court. As we have pointed out in the body of this submission, it has the potential to go much further than within litigation in finding resolutions and crafting outcomes beyond the scope of the legal process. 9 To better understand the scope of mediation, Harvard Law School offers a definition of mediation which is

very difficult to beat in highlighting the range of its benefits: The story centers around two sisters and an Page orange. The first sister says, “I’m going to eat my orange now.” Immediately, the second sister objects,

The Mediation Agency Web site: www.mediationagency.com Phone: 01624 830 024 Email: [email protected] or [email protected]

281 “But, it’s not your orange, it’s mine.” A debate between the sisters follows during which one protests that she paid a sum of money to acquire the orange, while the second sister counters by pointing out that she loaned her sister the money in the first place and had not been paid back. Thus, there is a dispute. If that dispute took the traditional routes to resolution, a court of law would rule that the sister who paid the money had thus acquired ownership, or title, of the orange and now was the rightful owner. The best the court could do for the second sister would be to acknowledge her right to sue for the money owed. On the other hand there is arbitration; a less formal version of litigation but with a built-in discretion. This would most likely produce a result whereby the arbitrator would take a knife, cut the orange in two, and give each sister half of the orange. But what if the first sister wanted to eat the fruit, whereas the second sister wanted the peel in order to bake a cake? The harsh reality is that there is a solution that would have satisfied the interests of both sisters one hundred percent. The enlightening thing about this story is that none of the traditional legal processes (namely, litigation or arbitration) could possibly have come up with that solution. Indeed, if the House of Lords in London sat from now until the end of the decade, there is no structure available to enable them to reach what appears to be such an obvious solution. The other reality is that a good mediator would probably have found that solution within approximately fifteen minutes by communicating directly with the parties and exploring their precise interests. The conclusion is, therefore, not only can mediation come up with a resolution, but it can set about potentially restoring relationships that would otherwise be fatally damaged in the litigation process. In addition, the speed with which mediation resolves conflict is persuasive in its own right. The second, and arguably most important aspect of a programme, is the training of the mediators. To date we have conducted two training programmes on the Isle of Man and subsequently many of our students have expressed a desire to help establish a facility for mediation at any level. As we complete this submission, there are trained Isle of Man mediators who would be competent to mediate in any court or community programme. We say this with confidence because our training programme, and the subsequent mediators it produced, was adopted by the Supreme Court of Arizona as being of sufficiently high quality to prepare mediators at every level for operation within their programme. It is no different here and it would be waste of resource not to utilize the talents of these talented mediators, many of whom are professionals in fields complementary to conflict resolution. Finally, the commencement of a court or community mediation programme must be planned carefully. For success, and to assure it has immediate impact, mediation needs to be introduced from the ground up and not vice-versa. By that we mean the public must be educated into the value of exploring mediation before other conflict resolution choices. This can be achieved using publicity campaigns heralding a new Isle of Man mediation programme. Helping citizens to gain confidence in the integrity of the mediation process, and creating a belief in its potential for success in resolving all types of conflict, would be the long-term goal. Because of our previous experience in similar programmes, we are in a position of helping you not to “reinvent the wheel.” We could assist with forms, programme design, and staff training. It would be our honour to help you establish such a programme, and we both would be prepared to continue on as advisors or coordinators within the system once in place. If you would like additional information or would like to schedule a date and time where we could meet and discuss these points in person, please do not hesitate to contact us. Best regards, 10

Frank Hanna, D. Med. Nancy Peterson, M.Med. Page

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282

Parliamentary Copyright available from:

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